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A    TREATISE  <^  %:>^ 

ON  '^o. 


THE  LAW  OF  RIPARIAN  RIGHTS 


AS  THE  SAME  IS  FORMULATED  AND  APPLIED  IN  THE  PACIFIC 
STATES,  INCLUDING  THE  DOCTRINE  OF 


APPROPRIATION 


By  John  Norton  Pomeroy,  LL.D. 

Author  op  works  on  Constitutional  and  International  Law 
AND  ON  Equity  Jurisprudence 


BEVISED  AND  EDITED  BY 

Henry  Campbell  Black,  M.  A. 

AXTTHOR  OF  A  WORK  ON   CONSTITUTIONAL  PROHIBITION 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO.  jm 

1887  .;•/• 


Pin  1 4  n 


COPYBIGHT,  1887, 
BY 

WEST  PUBLISHING  COMPANY. 


EDITOR'S   PREFACE. 


The  late  Professor  Pomeroy,  during  his  editorship  of  the  West 
Coast  Reporter,  published  in  that  journal  a  series  of  articles  on 
water-rights  and  riparian  privileges  in  the  Pacific  states,  which 
attracted  much  attention  from  the  legal  profession  in  those  com- 
munities, and  elicited  high  commendation  by  reason  of  their 
learning,  candor,  and  comprehensive  grasp  of  the  subject.  In 
consequence  of  the  peculiarities  of  the  law  of  riparian  rights  ob- 
taining in  California,  Nevada,  and  the  adjacent  states  and  terri- 
tories, the  limited  applicability  of  the  common-law  rules,  the 
prevalence  of  that  unique  system  known  as  the  doctrine  of  ap- 
propriation, and  the  novelty  and  importance  of  the  questions 
presented  to  the  courts,  the  appearance  of  these  articles  was 
timely  and  significant,  and  they  formed  a  valuable  addition  to 
the  literature  of  the  subject.  The  plates  and  copyrights  of  the 
West  Coast  Reporter  having  come  into  the  ownership  of  the  pub- 
lishers of  the  present  work,  it  was  decided  to  reprint  the  ar- 
ticles in  question  in  the  form  of  a  text-book;  and  they  constitute 
the  basis  of  the  monograph  now  offered  to  the  profession.  It  is 
to  be  regretted,  for  several  reasons,  that  this  undertaking  could 
not  have  had  the  benefit  of  the  author's  own  superintendence 
and  revision;  and  especially  because  the  doctrines  and  results 
of  the  later  cases  cannot,  perhaps,  be  so  harmoniously  blended 
into  the  original  work  by  a  stranger's  hand.  But  the  editor 
has  endeavored  to  perform  this  office  to  the  best  of  his  op- 
portunities.    Apart  from  the  breaking  of  the  work  into  chap- 

(iii) 


iv  EDITOK  S    I'HKFACE. 

tors,  ftntl  the  introtluction  of  section  numbers  and  appropriate 
hcml-lincs,  he  has  bccni  scrupulous  to  preserve  intact  both  the 
Inn^uaj-o  and  the  arranj^cnient  of  Professor  Pomeroy,  making 
only  such  slight  changes  in  phraseology  as  were  rendered  neces- 
sary by  the  altered  form  of  publication.  All  the  later  author- 
ities have  been  carefully  collated,  and  their  views  and  results — 
as  also  a  considerable  number  of  cases  not  cited  by  the  author 
— have  been  incorporated  in  the  work  in  one  form  or  another. 
The  general  plan  has  been  to  make  these  interpolations  in  the 
way  of  additional  foot-notes.  But  it  was  found  that  several 
topics  of  great  importance  were  first  broached  by  the  later  cases, 
and  that  points  which  were  but  imperfectly  developed  when  the 
original  articles  were  prepared  had  been  clarified  or  enlarged 
upon.  It  then  became  necessary  for  the  editor  to  write  new 
sections;  and  these,  being  inserted  in  their  proper  connection, 
have  added  considerably  to  the  bulk  of  the  work.  But  in  every 
instance  of  a  new  foot-note  or  a  new  section,  the  editor's  mate- 
rial is  to  be  distinguished  from  that  of  the  author  by  the  fact 
that  it  is  inclosed  in  brackets.  With  a  view  to  further  facility 
in  the  use  of  the  book,  an  index  and  a  table  of  cases  are  added. 

H.  C.  B. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTION". 


§  1.    Importance  of  the  subject— Need  of  legislation. 

2.  Object  of  the  present  work. 

3.  The  problem  stated. 


CHAPTER  II. 

THE  COMMON-LAW  DOCTRINE. 

4.  Priority  of  appropriation  gives  no  superior  right. 

5.  Statement  of  leading  cases. 

6.  Inland  lakes  and  navigable  streams. 

7.  Specific  rules  stated. 

8.  Riparian  owner's  right  to  natural  flow  of  stream. 

9.  This  right  is  parcel  of  the  realty. 

10.  Diversion,  when  permissible. 

11.  Exceptions  to  common-law  rule  against  appropriation. 


CHAPTER  HI. 

APPROPRIATION  OF  WATERS  FLOWING  THROUGH  THE 
PUBLIC  DOMAIN 

L    Origin  and  Basis  of  the  Right  to  Appropriatk. 

§  12.     Scope  of  the  present  chapter. 

13.  Early  importance  of  mining  interests. 

14.  Mining  customs. 

(V) 


▼I  CONTENTS. 

g  13.  Doctrine  of  npproprinlioti. 

18.  Appropriation  not  ut  lirst  availing  as  against  the  government. 

17.  Till)  act  of  congress  of  IbOO. 

18.  Limits  of  the  doctrine  of  appropriation— The  early  cases. 
10.  Views  of  the  United  States  supreme  court. 

20.  Grounds  of  these  decisions. 

21.  Doctrine  of  appropriation  unknown  to  the  common  law. 

23.  Basis  of  riirht  to  apjirojiriate  water. 
28.  Grounds  for  iiresuuiption  of  license. 

24.  Efllcacy  of  miners'  customs. 

II.  ArrHorniATioN  as  agaixst  the  Subsequent  Grantee  of  the 

GOVERNMEN  T. 

2.').  Title  of  suii^cijiicnt  grantee  is  subject  to  prior  appropriation. 

26.  California  decisions  on  this  |)oiut. 

27.  Views  of  United  States  supreme  court. 

28.  The  act  of  1870  is  declaratory  only. 
20.  Public  lands  of  the  state. 

III.    The  Right  Restricted  to  the  Public  Domaiw. 

30.  Appropriation  confined  to  public  lands. 

31.  Jurisdiction  of  state  and  United  States  distinguished. 

32.  Power  of  government  to  annex  conditions  to  grants. 

IV.  Conflicting  Claims  between  Settlers  and  Appropriatobs. 

38.  Converse  of  ductrine  of  appropriation. 

84.  When  title  from  United  Slates  is  perfected. 

35.  When  patentee's  riparian  rights  vest 

30.  Review  of  the  authorities  on  this  point. 

87.  Riparian  rights  protected. 

88.  Doctrine  of  relation  applied  to  patentees. 
80.  Grounds  for  the  application  of  this  doctrine. 

40.  California  decisions. 

41.  Review  of  the  cases. 

42.  Riparian  rights  under  Mexican  grants. 
48.  Summarj'  of  conclusions. 


CHAPTER  IV. 

now  AX  APPHOPHIATION  IS  EFFECTED. 

44.  Successive  appropriations. 

45.  Doctrines  which  control  the  appropriation. 


CONTENTS.  VM 

46.  The  methods  by  which  an  appropriation  is  effected. 

47.  Intent  to  apply  water  to  beneficial  use. 

48.  There  must  be  actual  diversion. 

49.  There  must  be  actual  use  of  water. 

50.  Physical  acts  constituting  appropriation. 

51.  Notice  of  intent  to  appropriate. 

53.  Reasonable  diligence  in  completion  of  works. 

53.  When  appropriation  is  complete. 

54.  Appropriation  relates  back  to  first  step. 


CHAPTER  V. 

NATURE  AND  EXTENT  OF  THE   RIGHT   ACQUIRED   BY 
APPROPRIATION. 

I.    Nature  of  the  Right  Acquired. 

§  55.  Appropriator's  right  begins  at  head  of  his  ditch. 

56.  Nature  and  extent  of  right  depends  on  purpose  of  appropriatioa. 

57.  Property  in  ditches  and  canals. 

58.  Sale  of  ditches  and  water-rights. 

59.  Tenancy  in  common. 

60.  Right  to  natural  flow  of  water  at  head  of  ditch. 

61.  What  are  streams  subject  to  appropriation. 

62.  Definition  and  characteristics  of  a  water-course. 

63.  Percolating  and  subterraneous  waters. 

64.  Right  to  exclusive  use  of  water. 

65.  Appropriator  may  change  place  or  manner  of  use. 

66.  Remedies  for  interference  with  these  rights. 

67.  Injuries  to  ditches. 

68.  Remedies  for  unlawful  diversion. 

69.  Equitable  jurisdiction. 

70.  Deterioration  of  quality  of  water. 

II.    Liability  fob  Damages  Caused  by  Ditches. 

71.  Various  kinds  of  injuries. 

72.  Damages  caused  by  breaking  or  overflow. 

73.  Proper  measure  of  care  required. 

74.  Injuries  from  intentional  trespasses. 

75.  Damages  from  mode  of  construction  or  operation  of  works. 

76.  Discharge  of  mining  debris. 

Tl.    Effects  of  hydraulic  mining  a  public  nuisance. 
78.    Impounding  dams. 


fill  CONTENTS. 


ni.    Extent  of  the  Right  Acquired. 

I  79.     Amount  of  WRtor  which  the  appropriator  is  entitled  to  use. 
N).     Carrying  capntit)'  of  ditch. 
til.    True  capacity  of  ditch  the  proper  measure. 

IV.    Successive  Apphopriatobs. 

Ml  Riirhts  of  subsequent  appropriator 

IB.  Successive  appropriations. 

M.  Periodical  aitjiropriations. 

85.  Conditions  under  which  subsequent  appropriation  may  bo  ef- 

fected. 

86.  Division  of  increase  in  stream. 

87.  Wrongful  diversion  of  springs. 

V.  Abandonment  of  Right. 

88.  General  doctrine  of  abandonment. 

89.  Methods  of  abandonment. 

•0.    Abandonment  by  adverse  user. 

VI.  Review  of  the  System. 

§1.     This  system  ns  a  whole. 

t-.     Defects  of  the  system. 

•3.     Presumption  that  stream  was  on  public  land. 


CHAPTER  VI. 

RIPARIAN  RIGHTS  ON  PRIVATE  STREAMS. 

I.    Legislation  on  the  Subject. 
Distinction  between  appropriator  and  riparian  owner. 


95.  Application  of  the  common  law. 

»«.  Summary  of  statutory  legislation— California. 

97.  Nevada. 

98.  Montana. 

99.  Colorado. 
100.  Idaho. 
101  Dakota. 

109.  New  Mexico. 

103.  Arizona. 

104.  Wyoming. 
106.  Utah. 


CONTENTS.  IX 


II.    The  Effect  of  this  Legislation. 


^  106.     Riparian  rights  abolished. 
107.    Two  distinct  systems. 


CHAPTER  VII. 

BIPARIAN  RIGHTS  IN  THE  PRIVATE  STREAMS  OF  CAL- 
IFORNIA AND  NEVADA. 

I.    Nature  and  Extent  of  These  Rights. 

:§  108.  Ambiguity  of  California  statutes  on  water-rights. 

109.  Review  of  the  authorities. 

110.  Common-law  doctrine  of  riparian  rights  obtains  in  California. 

111.  Construction  of  section  1423. 

112.  Riparian  rights  excepted. 

113.  Interpretation  of  section  1423 — Lux  v.  Haggiu. 

114.  Mexican  law — Effect  on  riparian  rights. 

115.  Riparian  rights  in  Kern  district. 

116.  Common  law  of  England. 

117.  Who  are  riparian  owners. 

118.  Prescriptive  water-rights. 

II.    Uses  to  Which  the  Water  mat  be  Put, 

119.  General  statement  of  riparian  rights— Van  Sickle  v.  Haines. 

120.  Modifications  on  doctrine  of  Van  Sickle  v.  Haines. 

121.  Legitimate  riparian  uses. 

122.  California  decisions. 

123.  Natural  uses. 

124.  Secondary  uses. 

125.  Reasonable  riparian  use. 

126.  Reasonable  use  for  manufactures. 

127.  Manner  of  use  must  be  reasonable. 


CHAPTER  VIII. 

USE  OF  WATERS  FOR  IRRIGATION. 

§  128.     Irrigation  of  riparian  lands — Ellis  v.  Tone. 
129.     Limited  authority  of  foregoing  decision. 


X  CONTEXTS. 

§  130.  Teudcncy  of  decision  in  Ellis  v.  Tone. 

131.  The  (|uc9tion  as  to  irrigntiou  stated. 

IJW.  No  rishl  to  irrigate  non  riparian  lands. 

133.  Prior  apprctpriation  gives  no  exclusive  right 

134.  Relative  ecpiality  of  riparian  owners. 

135.  Size  of  stream. 

136.  Reasonable  use  for  irrigation. 

137.  Easements  and  adverse  user. 

138.  Relation  of  irrigation  to  the  natural  wanta. 
189.  Summar}' of  principles. 

140.  Irrigalitin— The  English  authorities. 

141.  French  law. 

142.  Review  of  the  American  authoritiua. 

143.  Revii'W  of  authorities  continued— The  Pacific  cases. 

144.  Surplus  water  must  be  restored. 


CHAPTER  IX. 

SUr.GESTIOXS  FOR  LEGISLATION  ON  IIIPAKIAN  RIGHTS. 

^  IVi.  Need  of  statutory  regulation. 

146.  Irrigation — Common-law  rules  inadequate. 

147.  Contents  of  proposed  statute. 

148.  Essential  nature  of  projected  law. 

149.  System  of  ar^^f/iVw  impracticable. 

150.  Colorado  system  criticised. 

151.  Legislation  must  respect  natural  laws  and  natural  rights. 

152.  Natural  rights  and  advantages  of  riparian  owners. 
158.  Legislation  should  recognize  these  rights. 

154.  Jurisdiction  of  equity. 

155.  Legislation  to  the  same  end. 

156.  Provision  for  non-riparian  lands. 

157.  Condemnation  of  stream  for  public  use. 

158.  Whether  irrigation  is  a  public  use. 

159.  Eminent  domain. 

160.  Summary  of  suggestions  concerning  legislation. 

161.  Concluding  observations. 


TABLE  OF  CASES  CITED. 


[the  numbers  refer  to  sections.] 


A. 

Acquackanonk  Water  Co.  v.  Watson 12.5 

Acton  V.  Bluudell 63 

Adams  v.  Barn 63' 7 

Agawam  Caual  Co.  v.  Edwards 125 

American  Co.  v.  Bradford 83 

Antliony  v.  Lapham 142,  144 

Arnold  v.  Foot 8,  119,  142 

Ashley  v.  Wolcott 62 

Atchison  V.  Peterson 15,  17,  19,  64.  79,  89 

B. 

Baker  v.  Brown 125,  138 

Baltimore  v.  Appold 8,  125 

V.  Warren  Manuf  g  Co 157 

Barkley  v.  Tieleke 43,  88,  89 

Barnes  v.  Marshall ! 75 

V.  Sabron 15,  26,  43,  60,  61,  64,  79,  80,  83,  84,  143 

Barrett  v.  Parsons 125 

Basey  V.  Gallagher 17,  19 

Batavia  Manuf  g  Co.  v.  Newton  Wagon  Co 125 

Bealey  V.  Shaw 8,  119 

Bear  River  Co.  v.  New  York  Min.  Co 15,  18,  64,  70,  80 

Bellv.Gough  159 

Blaisdell  v.  Stephens 75 

Blanchardv.  Baker 119,  142,  144 

Bliss  V.  Kennedy 4,  7,  126 

(xi) 


xii  CASES   CITED. 

Hnircs  V-  Morcpd  Min.  Co 33'  '^^ 

Huston  Holliiii,'  Mills  v.  Cambridge 77 

Hiiyiiton  V.  Longley "^^^  ^^° 

Hr«(ll.- V  V.  Ilnrkness 59 

Hro.l.r  V.  Nfttoiua  Water  Co 16.  17,  27.  40.  83 

Hrown  V.  Ashley 63,68 

HurkiriLrliam  v.  Smith H^ 

Hiuliiinik'ton  v.  Bradley 7,  8 

HiifTiiin  V.  Harris 62 

Hurwcll  V.  Ilubson 127 

Hiitle  Canal,  etc..  Co.  v.  Vaughn 48,  83.  89 

Butte  T.  M.  Co.  v.  Morgan 64,  65,  68 


c. 

Campbell  v.  Bear  River  Co 72 

V.  Smith 119 

Canal  Appraisers  v.  People 119 

Carpcntier  v.  Webster 59 

Caruthcrs  v.  Pemberton 43 

Cary  v.  Daniels 9.  11,  125 

Case  V.  Weber 8 

Chandler  v.  Ilowland 125 

Chasemore  v.  Richards 8,  63 

Chiatovirh  v.  Davis. .  • .~ 58 

Chotard  v.  Pope 41 

Clark  V.  Willett 64,  67 

Clifford  V.  Larrien 69 

Clinton  V.  Myers 8,  125 

Coffin  V.  Left  Hand  Ditch  Co 49 

Coffman  v.  Robbius 8 

Cole  Silver  Min.  Co.  v.  Virginia  Water  Co 63 

Columbia  M.  Co.  v.  Holtcr 50 

Commissioners  v.  Kempshall 119 

V.  Withers 159 

Conger  v.  Weaver 23 

Cook  V.  Hull 144 

Cooper  V.  Williams g   157 

Corning  v.  Troy  Iron,  etc.,  Factory 119 

Countess  of  Rutland  v.  Bowler 9 

Covington  v.  Becker 43 

Cowles  V.  Kidder 4  g 

Cramer  v.  Randall 43  47  70 

Crandall  v.  Woods 15,  33,  36,  45,  109.  UO 

Crane  v.  Winsor I5 


CASES    CITED.  XIU 

Creighton  v.  Evans 9,  37,  109.  110,  111.  123 

V.  Kaweah  Canal  Co ""^ 

Crisman  v.  Heiderer ^"" 

Crocker  v.  Bragg ^]^ 

-Cross  V.  Kitts 


63 

\ 


D. 

Dalton  V.  Bowker ^^ 

Daniels  v.  Lansdale *" 

Davis  V.  Fuller ^^^ 

V.  Gale 47,  50,  64,  65,  79,  83,  86,  88,  8» 

V.  Getchell ^'  l^^'  ^^^ 

1  07 

De  Baun  v.  Bean '■"" 

Dickv.  Bird '^'^ 

v.  Caldwell 4^' ^^ 

Dickinson  v.  Grand  Junction  Canal  Co 63 

V.  Worcester 

Dilling  V.  Murray 8.  1«5 

Dodare  v.  Harden ^^ 

1  QO 

Dorr  v.  Hammond 

Dougherty  v.  Haggin 

Dow  v.  Edes "^^ 

ft 

Druley  v.  Adam 

Dumont  V.  Kellogg *'  1^'  ^^^ 

E. 

Earl  V.  DeHart ^^ 

Earl  of  Sandwich  V.  Great  N.  Ry "^^^ 

Eddy  V.  Simpson ^ 

Edgar  v.  Stevenson ^* 

Elliot  V.  Fitchburg  R.  R 119,125,  142 

Ellis  V.  Tone 109,111,128,130,131,134 

Ellison  V.  Jackson  Water  Co 48 

Embrey  V.Owen 8.119,125,140 

Eulrich  V.  Richter •••     ^^ 

Eureka  Lake  Co.  v.  Superior  Court ''"'' 

Evans  v.  Merriweather 4,  8,  125.  138,  142 

V.Ross 69.90 

lid 
Ex  parte  Jennings 


F. 
FarleV  v.'  Spring  Valley  M.  Co 15,  36,  40.  41 


JO 

Fabian  v.  Collins  


XIV  CASES   CITED. 

Fnm'Il  V.  Richards 125,  143 

Keliz  V.  L<)9  Aiicflos 80 

Fcrrca  v.  Knipe 9.  109,  110,  123,  127,  129 

Fleming  V.  Davis 12"5 

FraUT  V.  Sears  Co 72 

Frey  v.  I^owden 59 

Frisbio  v.  Whitney 40,  41 

Fuller  V.  Chicopee  Mnnufg  Co 11 


G. 

Gannon  v.  Hariradon 62 

tJardiier  v.  NewhiirLrh 119 

Carwood  v.  Hailroad 126 

lurrish  v.  New  Market  Co 119,  125 

IJibbs  V.  Williams 62 

(Jibson  V.  Piichta 36,  47 

Gillelt  V.  Johnson 62,  142 

Gilman  v.  Tiltou 4 

Golden  Canal  Co.  v.  Briirht 99 

Gould  V.  Boston  Duck  Co 11 

Green  v.  Carotto 62 

Grepory  v.  Nelson 64,  67 

Grigsby  v.  Clear  Lake  W.  Co 75 


H. 

Ha^rar  V.  Reclamation  District 42 

llalduman  v.  Bruckhart 63 

Hale  V.  McLca 9  53  109 

Hanson  v.  McCue 9,  62,  63,  109 

Hardt  v.  Liberty  Hill  Min.  Co 78 

Hartzall  v.  Sill 4 

Harvey  v.  liyan 04 

Hayes  v.  Waldron jog 

Hazelline  v.  Case j25 

Heath  V.  Williams 4  5  jjg 

Hebron  Gravel  Road  Co.  v.  Harvey 63 

Henderson  V.  Nicholas 58 

Hendrick  v.  Cook g 

Hendricks  v.  Johnson o 

Hcnshaw  V.  Clark 74  75 

Hipgins  V.  Barker 79  81   83 

Hill  V.  King .  .15  68 

▼.  Newman .....'.*.".*.".'.".*.  .9,  is!  18 


CASES    CITED.  XV 

Hill  V.  Smith 15,  37,  64,  70,  83,  109 

Hillman  v.  Newington 77 

Himes  v.  Johnson 15,  64 

Hobartv.  Ford 43 

Hoffman  v.  Stone 15,  18,  48,  68 

V.  Tuolumne  Co 73,  73 

Holden  v.  Lake  Co 125 

Holsman  v.  Boiling  Springs  Co 8 

Howard  v.  Ingersoll 63 

Hoy  V.  Sterrett ^ 

Humphreys  v.  McCall 43 

Huston  V.  Leach  1^^ 

Huttonv.  Frisbie 40,41 


I. 

Ingraham  v.  Hutchinson 119 

Irwin  V.  Phillips 15.  24 

V.  Strait 64 


J. 

James  V.  Williams ^^ 

Jennings,  Ex  parte H^ 

Jennison  v.  Kirk 13,  40 

Johnson  v.  Jordan 9,  119 

V.  Superior  Court 69 

Jones  V.  Adams 17>  143 

V.  Wabash,  etc.,  R.  Co 62 

Judkins  v.  Elliott 26 

Juukans  v.  Bergin "5 

K. 
Kaler  v,  Campbell 


Keeney  v.  Carillo 


48 


Keeney  Manuf  g  Co.  v.  Union  Manuf  g  Co 4,  11 

Kelly  V.  Dunning 63 

V.  Natoma  Water  Co 15,  18,50,83 

Kiddv.  Laird 15,48.55,60,64,65,79 

Kimball  V.  Gearhart 50,51.53,54,64 

King  V.  Edwards 24 

V.  Tiffany 8' 11^ 

Knoth  V.  Barclay ^^ 


xvi  CASE3   CITED. 


L. 


I>an«<lftlp  V.  Dnnicls 2ff 

I^Hriiner  Co.  Heservuir  Co.  v.  Pciiplc ^9 

L«'iiriHHl  V.  Tfiiijs't'iiiiin 138 

IxmIu  v.  Jim  Yl'I  \Va »0 

L«lii  Irrignlinn  Co.  v.  Moylc 'i^,  105 

lA-\t:h  Co.  V.  ImlependeiilDil.h  Co 33.  36,  109 

Ia- varolii  v.  Miller 7& 

Lick  V.  Madden 119 

Lincoln  v.  Chad  bourne 11 

Lobdell  V.  Hall 43,58 

V.  Simpson 15.43,  79,83 

Lock  wood  Co.  V.  Lawrence 76 

Lotran  V.  Driscoll 76 

Lorenz  v.  Jacobs 59 

Los  Angeles  v.  Baldwin 55 

Lowden  v.  Frey 89 

Lowell  V.  Boston 11 

Lower  Kiniis  Hiver  W.  Co.  v.  Kings  River  Co 55,  CO' 

Luther  v.  Winnisimraet  Co 63 

Lux  V.  Haggin 8.  9,  16,  21,  22,  24,26,28,  29.  36,  62,  69, 

113.  114, 115, 116, 125, 140, 142, 143, 159 

Lytle  V.  Arkansas 41 

Lytle  Creek  Water  Co.  v.  Perdew 26,  43,  59,  84,  93,  109,  111 

M. 

Mack  V.  Jackson 69' 

Ma< oinber  v.  Godfrey 63 

Maeris  v.  Hicktiell 15,  47,  54,  65 

Mahan  v.  Brown 63 

Martin  v.  Bigelow 8 

V.  Waddell  31 

Mason  v.  Cotton 69 

V-  'I'll 8,  114,  119,  125 

Mayor  of  Baltimore  v.  Appold 8,  125 

McCarty  v.  Boise  City  Canal  Co 7.5- 

McDonald  v.  Askew 47,  55,56,  60,  64,  86 

V.  Bear  Hiver  Co 15,  47,  53,  65,  68 

McElroy  v.  Goble 125 

M(  Kinney  v.  Smith 47  79  83 

Mcucrle  V.  Ashe 26 

Mcrritleld  v.  Lombard 8 

Merrill  v.  Brinkerholl 125. 


CASES    CITED.  XVll 

Miller  V.  Miller 138 

V.  Troost 11 

Mills  V.  Hall 77 

Miner  v.  Gilmour 125,  140 

Mitchell  V.  Parks .-..      8 

Mofifett  V.  Brewer 119 

Moore  v.  Clear  Lake  Water-  Works 69 

Morton  v.  Solambo  C.  M.  Co 24 

Mosier  v.  Caldwell 63,  109 

Munroe  v.  Ivie 43,  47,  159 

N. 

Natoma  Water  &  M.  Co.  v.  McCoy 60,  64,68 

Nevada,  etc.,  Co.  v.  Kidd 15,36,  53,55 

V.  Powell , 65,  79,  83,  87 

Newhall  v.  Ireson 142 

Nixon  V.  Bear  River  Co — 76 

Norbury  v.  Kitchin 140 

Norton  v.  Volentine 10 

Norway  Plains  Co.  v.  Bradley 125 

Nuttall  V.  Bracewell 125 

o. 

Omelvany  v.  Jaggers 8 

Ophir  Silver  Min.  Co.  v.  Carpenter 15,  43,  51,  52,  54,  64,  80 

Orr  Ewing  v.  Colquhoun 8 

Ortnian  v  Dixon 15,  47,  55,  56,  58.  64,  79,  83 

Osgood  V.  El  Dorado  Water  Co 26,  36,  39,  50,  51,  52,  54 

P. 

Palmer  v.  Waddell 63 

Parke  v.  Kilham 51,  52,  54,  68 

Parker  v.  Hotchkiss 4,  II7  119 

Parks  v.  Ne wburyport ....     62 

Parks  Canal  Co.  v.  Hoyt 15,  48,  55,  60 

Pennsylvania  R.  R.  v.  Miller 125 

People  V.  Canal  Appraisers 21,  119 

V.  Cunningham 77 

V.  Gold  Run  Ditch  Co 77 

V.  Stratton 77 

Pettibone  v.  Smith 10 

Pettis  V.  Johnson 77 

Phoenix  W.  Co.  v.  Fletcher 15,  60,  64,  68 

POM. RIP. — b 


XVUl  CASES   CITED, 

Pillsbury  v.  Moore '''>  8 

Pitt.s  V.  Lnncastrr  Mills 125 

riuiiili-i,i;h  V.  Diiwsoii 8.  119>  125 

Pollard's  Li-ssrc  v.  lliigaii 81 

Pope  V.  Kii.miin  !».  37.  109.  110,  111,  119,  123 

Poller  V.  liiirdcn 8 

Pratt  V.  Laiuson 8,  11 

Proctor  V.  .leiinings 73,  83 

Pugh  V.  Wheeler 4,5,  119 

Pyle  V.  Richards 62 

Q. 

Quirk  V.  Fulk 57 

R. 

Railroad  Co.  v.  Carr 75 

Red  River  RolIerMills  v.  Wright 76 

Reed  v.  .Spicer 57 

Reynolds  v.  Hosnier 60,  64,  81,87 

Rhodes  v.  Whitehead 8.  125.  138 

Richardson  v.  Kier 48,  72,  75 

Robinson  v.  Hlack  Diamond  Co 76 

V.  Imperial  S.  M.  Co 43,  50 

Rogers  v.  Jones 119 

Rominger  v.  tSquires 85 

Rudd  V.  Williams 8 

Rupley  V.  Welch 37,  64 

s. 

Sacramento  v.  Central  Pac.  R.  R 77 

Baddler  v.  Lee 63 

8t.  Helena  Water  Co.  v.  Forbes 157 

Bampson  V.  Hoddinott 9,119,125,140 

Bchilling  v.  Rominger 15^  106 

bchul/.  V.  .Sweeny 89 

Bhamlefler  v.  Council  Grove  Mill  Co 8 

Shields  V.  Arndt g3 

hhively  v.  Hume gg 

Shoemaker  v.  Hatch 43 

Shook  V.  Colohan j23 

Shury  v.  Piggot 9 

Weber  V.  Frink ! 49,  54,  65,  90 

Simpson  v.  Williams 79 


CASES  CITED.  XIX 

Sims  V.  Smith 69 

Slack  V.  Marsh 123,  125 

Smith  V.  Adams 63 

V.  Agawam  Canal  Co 11 

V.  Athern 26 

V.  Gould 157 

V.  Logan. 90,  117 

V.  O'Hara 58,  83,  84,  89 

V.  Rochester 6,  21 

Snow  V.  Parsons 119,  125 

Springfield  v.  Harris 8,  126 

State  V.  Pottmeyer 125 

Stein  V.  Burden 123,  125 

Stein  Canal  Co.  v.  Kern  Island  Co 64,  81,  83 

Stillman  v.  White  Rock  Co 4 

Strait  V.  Brown 15.48,  63,64,  87,  109 

Swift  V.  Goodrich 69,  125,  143 

Swindon  Water- Works  v.  Wilts  Canal  Co 140 

T. 

Tartar  V.  Spring  Valley  Min.  Co 19 

Taylor  V.  Welch 8,63 

Ten  Eyck  v.  Delaware  Canal  Co 8 

Tenney  v.  Miners'  Ditch  Co 72 

Thomas  v.  Guiraud 47,  49.  50 

Thompson  v.  Lee 50 

Thurber  v.  Martin ' 125 

Tillotson  V.  Smith 8.  119,  125 

Timm  v.  Bear. 125 

Titcomb  v.  Kirk 74 

Toddv.  Cochell 72 

Tourtellot  v.  Phelps 125 

Townsend  v.  McDonald 7 

Trenton  Water  Co.  v.  RafE 159 

Trustees  v.  Haven 119 

Tucker  v.  Salem  Flouring-Mills 118 

Tuolumne  W.  Co.  v.  Chapman 68 

Turner  v.  Tuolumne  Co 74 

Twiss  V.  Baldwin ^ 125 

Tylerv.  Wilkinson 4,5,8^  9,  119,  125 

u. 

Union  Mill  Co.  v.  Dangberg 83.  86 

V.  Ferris 32,  33,36,  125,  138 

Union  Water  Co.  v.  Crary 90 


XJL  CASES    CITED. 


V. 


Van  Sickle  v.  Unmcs 10.  33.  30,  43.  109.  119.  120,  123,  131,  135 

Vcrnuiu  v.  Wlieelcr '''•> 

Vliet  V.  Sherwood & 

w. 

W'adsworth  v.  Tillotsnn 8,  9,  119,  125. 

Wiire  V.  Walker 26,  65 

Wattier  V.  Miller 118 

Weaver  v.  Contjer 53 

V.  Eureka  Lake  Co 47,  50,  51,  52,  68 

Webb  V.  Porllaiul  Mannfg  Co 119,  125 

Weidekind  v.  Tuoluinue  Water  Co 73 

Weill  V.  Baldwin 117 

Weiss  V.  Oregon  Iron  Co 69,  126- 

West  V.  Taylor 62 

Western  Pac.  R.  R.  v.  Tevis 40,  41 

Weston  V.  Alden 142 

Wheatley  v.  Baiigh 63 

V.  Chrisman 125 

Whetstone  v.  Bowser  63 

White  V.  Todd's  Valley  W.  Co 81 

Whittier  v.  Cocheco  Manuf  g  Co 6* 

Wilcox  V.  Ilausch 79- 

Williams  v.  Wadswortb IIT 

Williamson  v.  Canal  Co 125 

Wixon  V.  Bear  River  Co 15,  37,  76 

Wolf  V.  St.  Louis,  etc.,  Co 72 

Wood  V.  Edes 125 

V.  Waud ; 8,  125. 

Woodruff  V.  North  Bloomfield  G.  M.  Co 24,  32,  42,  76,  77 

Woolman  v.  Garringer 47,  51,  54,  65,  79,  89 

Wright  V.  Howard 8,  119 

V.  Moore 77 


Y. 

Yankee  Jim's  Union  Water  Co.  v.  Crary 68 

Yolo  Co.  V.  Sacramento 77 

Yunker  v.  Nichols 10ft 

t 


LAW  OF  RIPARIAN  RIGHTS. 


CHAPTER  I. 

INTRODUCTIOJq". 


§  1.     Importance  of  the  subject — Need  of  legislation. 

2,  Object  of  the  present  work.  ' 

3.  The  problem  stated. 

§  1.    Importance  of  the  subject — Need  of  legislation. 

No  special  branch  of  the  law  of  California,  Nevada,  and  other 
commonwealths  of  the  Pacific  coast,  is  more  practically  impor- 
tant, and  none  is  more  uncertain,  unsettled,  and  contradictory, 
than  that  which  deals  with  the  right  to  appropriate  or  use  the 
waters  of  lakes  and  running  streams,  navigable  or  unnavigable, 
and  with  the  conflicting  rights  of  riparian  proprietors  to  the 
same  waters.  The  whole  subject  imperatively  demands  the 
most  careful  and  complete  legislation,  which  shall  define  the 
rights  of  all  interested  parties,  and  establish  a  code  of  rules  reg- 
ulating them  upon  a  comprehensive  and  just  basis,  entirely  in- 
dependent, it  may  be,  of  the  common-law  doctrines.  The  great 
danger  is — and  the  danger  is  very  great — lest  such  legislation 
should  be  enacted  wholly  in  favor  of  some  one  interest,  to  the 
exclusion  of  other  interests  equally  real,  but,  perhaps,  not  so 
strongly  pressed  upon  the  legislature.  To  prevent  such  un- 
just discrimination,  which  would  inevitably  retard,  if  not  com- 
pletely stop,  the  development  of  the  most  valuable  and  perma- 
nent natural  resources  of  these  states,  the  following  preliminary 

POM.  RIP. — 1 


I  2  INTRODUCTION.  [Ch.  1. 

eiHKlitioiis  are  essential:  (1)  The  common-law  rules  concerning 
wuter-right,  should  be  accurately  apprehended,  in  order  that  it 
may  be  seen  how  far,  and  in  what  particulars,  they  are  unfitted 
for  tlie  industrial  jnirsuits,  the  mining,  agricultural,  grazing, 
manufacturing,  and  municipal  interests  of  these  Pacific  com- 
munities. (2)  The  existing  law  of  these  states  and  territories, 
as  founded  upon  statutory  legislation,  Spanish-Mexican  laws, 
customs,  and  judicial  decisions,  should  be  carefully  examined 
and  formulated,  as  far  as  possible,  so  that  its  imperfections, 
omissions,  advantages,  and  defects  would  be  clearly  disclosed 
and  understood.  With  the  knowledge  obtained  from  such  an 
investigation  only,  can  the  legislature  construct  a  system  of 
statutory  rules  which  shall  represent,  harmonize,  and  protect 
aU  conflicting  interests,  as  far  as  it  is  possible  to  provide  for  and 
protect  all  by  a  compromise  in  which  each  must  make  some 
Burrender,  must  submit  to  some  curtailment.  Common  justice 
lequircs  some  partial  surrender  by  each  in  order  that  all  may 
\c  })enetited;  and  the  chief  difficulty  lies  in  making  an  equitable 
api>irtionment  of  such  burdens  among  all  classes  of  proprietors. 
Statutes  wliich  recognized  the  rights  of  riparian  owners  alone, 
by  simply  enacting  the  common-law  rules,  would  destroy  the 
main  usefulness  of  our  streams,  and  stop  the  development  of 
the  great  agricultural  resources,  by  rendering  any  extensive 
system  of  irrigation  practically  impossible.  On  the  other  hand, 
statutes  which  should  wholly  ignore  the  interests  of  riparian 
proprietors  would  invade  vested  rights,  and  produce  evils  equally 
grave  and  far-reaching. 

§  2.     Object  of  the  present  work. 

As  well  for  the  purpose  of  furnishing  a  slight  contribution  to- 
wards such  amendatory  legislation,  as  for  the  purpose  of  dis- 
eussing  a  subject  of  great  importance  to  the  legal  profession,  I 
intend,  in  the  following  pages,  to  examine  the  existing  law  con- 
(2) 


Ch.  1.]  INTRODUCTION.  §    3 

cerning  Water-Eights  and  the  Rights  of  Riparian  Owners,  as  it 
prevails  in  the  southern  states  and  territories  of  the  Pacific  slope; 
to  ascertain,  as  far  as  practicable,  the  rules  which  have  been  es- 
tablished by  statute  or  by  judicial  decision;  to  point  out  the 
omissions,  imperfections,  contradictions,  or  questions  left  un- 
settled; and  to  compare  these  results  generally  with  the  common- 
law  and  the  Spanish-Mexican  systems.  I  may,  in  conclusion, 
suggest  some  amendments  which  might  properly  be  made  by 
the  legislature. 

§  3.     The  problem  stated. 

In  these  Pacific  states  and  territories,  water  is  the  one  essen- 
tial element  of  all  productiveness  and  consequent  prosperity. 
Its  use  for  mining  operations  first  attracted  attention,  and  was 
the  subject  of  some  partial  legislation.  Its  use  for  agricultural 
purposes  of  every  kind  has  become  far  more  important  and  ben- 
eficial, and  more  closely  connected  with  the  permanent  welfare 
of  these  communities.  Regions  which  are  apparently  most  desert 
and  sterile,  can,  with  a  sufficient  supply  of  water,  be  turned 
into  gardens,  and  made  to  "blossom  as  the  rose."  Nature  has 
arranged  abundant  means  and  facilities  for  such  an  artificial 
supply.  For  example,  in  the  great  San  Joaquin  valley  east  of 
the  San  Joaquin  river — which  at  times  seems  to  be  an  expanse 
of  dry  sand — there  is  hardly  an  acre  which  cannot  be  reached 
by  a  well-constructed  system  of  irrigation  utilizing  the  water  of 
the  streams  which  rise  in  the  high  sierras,  cross  the  valley  at 
nearly  equal  intervals,  and  empty  into  the  San  Joaquin.  With 
such  irrigation,  the  whole  valley  would  be,  perhaps,  the  most 
fertile  district  in  the  world.  I  may  remark  in  passing  that 
never  before  did  I  so  fully  appreciate  this  wonderful  transform- 
ing power  of  water,  as  after  riding,  some  years  ago,  a  whole  day 
over  the  foot-hills,  parched  and  browned  and  barren,  I  drove 
the  few  miles  from  the  ferry  at  Merced  Falls  to  the  village  of 

(3) 


§  8  INTRODUCTION.  [Ch.  1. 

Snclling,  through  what  was  in  fact  a  rural  paradise, — through 
green  fields,  roads  overarched  with  rows  of  magnificent  trees, 
and  door-yards  filled  with  flowers, — all  the  effect  of  irrigation 
obtained  from  the  Merced.  Similar  illustrations  may  be  seen, 
in  all  parts  of  this  state.  But  these  uses  of  water  for  mining, 
for  irrigation,  for  municipal  purposes,  necessarily  diminish,  to 
a  very  considerable  extent,  the  natural  and  normal  supply  of  the 
lakes  and  streams  from  which  it  is  taken,  and  therefore  conflict 
with  the  common-law  rights  of  the  xiparian  owners,  and  violate 
the  settled  doctrines  of  the  common  law.  It  is  simply  impossi- 
ble to  utilize  water  for  any  of  these  purposes,  and  then  to  re- 
turn it,  substantially  unchanged,  in  amount  and  condition,  to 
its  original  cliannels.  The  problem  is  to  reconcile,  or  rather  to 
adjust,  these  necessary  uses,  and  the  common-law  rights  and  in- 
terests of  all  other  and  riparian  proprietors.  It  will  be  expedient 
to  state  by  way  of  preface,  for  purposes  of  comparison  and  illus- 
tration, the  general  doctrines  of  the  common  law;  and  this  will 
be  attempted  in  the  following  chapter. 
(4) 


Ch.  2.]  COMMON-LAW   DOCTRINE.  §   4 

CHAPTER  II. 

THE  COMMON-LAW  DOCTRINE. 

§   4.  Priority  of  appropriation  gives  no  superior  right. 

5.  Statement  of  leading  cases. 

6.  Inland  lakes  and  navigable  streams. 

7.  Specific  rules  stated. 

8.  Riparian  owners  right  to  natural  flow  of  stream. 

9.  This  right  is  parcel  of  the  realty. 

10.  Diversion,  when  permissible. 

11.  Exceptions  to  common-law  rule  against  appropriation. 

§  4.     Priority   of  appropriation   gives  no   superior 
right. 

The  common-law  doctrine,  in  its  most  general  form,  is  that 
the  water  of  permanent  running  streams  and  of  inland  lakes  is 
sacred  to  the  common  use  alike  of  all  the  riparian  proprietors 
upon  their  borders.  This  doctrine  extends  both  to  navigable 
and  unnavigable  streams  and  lakes  which  are  wholly  inland  and 
territorial .  Each  proprietor  may  use  the  water  for  all  reasona- 
ble purposes  as  it  passes  through  or  by  his  land,  provided  that 
he  does  not  interfere  with  the  public  easement  of  navigation  in 
all  navigable  lakes  and  streams;  but  he  must,  after  its  use,  re- 
turn it  without  substantial  diminution  in  quantity  or  change 
in  quality  to  its  natural  bed  or  channel,  before  it  leaves  his  own 
land,  so  that  it  will  reach  his  adjacent  proprietor  in  its  full, 
original,  and  natural  condition.  No  priority  of  use  or  appro- 
priation by  any  one  pro^jrietor  can  give  him  any  higher  or  more 
extensive  rights  than  these,  as  against  other  proprietors  either 
higher  up  or  lower  down  on  the  stream,  or  abutting  on  either 
side  of  him  upon  the  shores  of  the  lake.  More  extensive  or  ex- 
clusive rights  than  these  against  other  riparian  proprietors  can 
only  be  acquired  by  grant  from  them,  or  by  prescription  which 

(5) 


§   5  COMMON-LAW    DOCTRINE.  [Ch.  2. 

presupposes  n  former  grant.'  Even  the  state,  by  its  power  of 
eminent  domain,  cannot  give  any  more  extensive  or  exclusive 
rights  to  one  proprietor,  under  color  of  a  public  use,  without 
making  provision  for  compensation  to  all  other  proprietors  whose 
natural  rights  would  thus  be  invaded.  This  general  doctrine, 
and  all  the  detail  of  subordinate  rules  to  which  it  leads,  are 
fully  sustained  by  the  almost  unanimous  consensus  of  modern 
decisions;  although  there  may  be  some  j^ariia?  deviations  from 
its  consequences  in  certain  particulars  in  a  few  of  the  states. 

§  5.     Statement  of  leading  cases. 

In  the  well-considered  case  of  Heath  v.  Williams,  25  Me. 
209,  Mr.  Justice  Shepley  briefly  but  accurately  stated  the  gen- 
eral doctrine:  "The  cases  decide  that  priority  of  appropriation 
of  the  water  of  a  stream  confers  no  exclusive  right  to  the  use  of 
it.  A  riparian  proprietor,  who  owns  both  banks  of  a  stream, 
has  a  right  to  have  the  water  flow  in  its  natural  current,  with- 
out any  obstruction  injurious  to  him,  over  the  whole  extent  of 
his  land,  unless  his  rights  have  been  impaired  by  grant,  license, 
or  an  adverse  appropriation  for  more  than  twenty  years."  In 
Tyler  v.  Wilkinson,  4  Mason,  397,  Judge  Story  said:  "Of  a 
thing  common  by  nature  there  may  be  an  appropriation  by 

J  [In  the  United  States  it  is  well  Scam.  492;  Oilman  v.  Tilton,  5  N, 
settled  that  mere  prior  occupancy  H.  231;  Cowles  v.  Kidder,  24  N.  H. 
or  appropriation  of  the  water  of  a  378;  Parker  v.  Hotchkiss,  25  Conn, 
running  stream  by  a  riparian  own-  321 ;  Keeney  Manuf'g  Co.  v.  Union 
er,  unless  continued  for  such  a  Manuf'g  Co.,  39  Conn.  576;  Hart- 
length  of  lime  as  to  raise  a  pre-  zall  v.  Sill,  12  Pa.  St.  248;  Pugh  v. 
sumption  of  a  grant,  can  give  no  Wheeler,  2  Dev.  &  B.  55;  Bliss  v. 
exclusive  right  thereto  as  against  Kennedy,  43  111.  67;  Dumont  v. 
other  owners  above  or  below  him  Kellogg,  29  Mich.  420;  Stillman  v. 
on  the  same  stream,  except  where  White  Rock  Co.,  3  Woodb.  &  M. 
the  common  law  has  been  modified  5.50;  Tyler  v.  Wilkinson,  4  Mason, 
by  local  usage  or  by  statutory  en-  397;  Ang.  Water- Courses,  §§  134^ 
actmenl.  Heath  v.  Williams,  25  3.50.J 
Me.  209;  Evans  v.  Merriweather,  3 

(6) 


Ch.  2.]  COMMON-LAW    DOCTRINE.  §    5 

general  consent  or  grant.  Mere  priority  of  appropriation  of 
running  water,  without  such  consent  or  grant,  confers  no  ex- 
clusive right.  It  is  not  like  the  case  of  mere  occupancy,  where 
the  first  occupant  takes  by  force  of  his  priority  of  occupancy. 
That  supposes  no  ownership  already  existing,  and  no  right  ta 
the  use  already  acquired.  But  our  law  annexes  to  the  riparian 
proprietorship  the  right  to  the  use  in  common,  as  an  incident 
to  the  land;  and  whosoever  seeks  to  found  an  exclusive  use, 
must  establish  a  rightful  appropriation  in  some  manner  known 
and  admitted  by  the  law.  Now,  this  may  be  either  by  a  grant 
from  all  the  proprietors  whose  interest  is  affected  by  the  partic- 
ular appropriation,  or  by  a  long,  exclusive  enjoyment  without 
interruption,  which  affords  a  just  presumption  of  right."  In 
Pugh  V.  Wheeler,  2  Dev.  &  B.  55,  Ruffin,  C.  J.,  stated  the  gen- 
eral doctrine  in  the  following  somewhat  fuller  manner:  "If  one 
build  a  mill  on  a  stream,  and  a  person  above  divert  the  water, 
the  owner  of  the  mill  may  recover  for  the  injury  to  the  mill,  al- 
though before  he  built  he  could  only  recover  for  the  natural 
uses  of  the  water,  as  needed  for  his  family,  his  cattle,  and  irri- 
gation; but,  if  instead  of  building  a  mill  he  had  diverted  the 
stream  itself,  he  cannot  justify  it  against  a  proprietor  below, 
upon  the  ground  that  he  had  thus  made  an  artificial  use  of  the 
water  before  the  other  had  made  any  such  application  of  it. 
The  truth  is  that  every  owner  of  land  on  a  stream  necessarily 
and  at  all  times  is  using  water  running  through  it,  if  in  no  other 
manner,  in  the  fertility  it  imparts  to  his  land,  and  the  increase 
in  the  value  of  it.  There  is  therefore  no  prior  or  posterior  in 
the  use,  for  the  land  of  each  enjoyed  it  alike  from  the  origin 
of  the  stream,  and  the  priority  of  a  particular  new  application 
or  artificial  use  of  the  water  does  not,  therefore,  create  the  right 
to  that  use;  but  the  existence  or  non-existence  of  that  applica- 
tion at  a  particular  time  measures  the  damages  of  a  wrongful 
act  of  another  in  derogation  of  the  general  right  to  the  use  of 

(7) 


§    6  COMMON-LAW    DOCTRINE.  [Ch.  2. 

the  water  as  it  passes  to,  through,  or  from  the  land  of  the  party 
complaining.  The  right  is  not  founded  in  user,  but  is  inherent 
in  the  ownership  of  the  soil,  and,  when  a  title  by  use  is  set  up 
against  another  proprietor,  there  must  be  an  enjoyment  for  such 
length  of  time  as  will  be  evidence  of  a  grant,  and  thus  consti- 
tute a  title  under  the  proprietor  of  the  land.  *  *  *  The 
use  to  which  one  is  entitled  is  not  that  which  he  happens  to  get 
before  another,  but  it  is  that  which,  by  reason  of  his  ownership 
of  land  on  the  stream,  he  can  enjoy  cm  his  land,  and  as  an  ap- 
purtenant to  it."' 

§  6.    Inland  lakes  and  navigable  streams. 

The  same  doctrine  concerning  the  particular  uses  and  appro- 
priation of  water  by  riparian  owners  is  extended  to  inland  lakes 
and  streanis  which  are  navigable.  This  subject  was  recently 
considered  by  the  New  York  court  of  appeals  in  the  case  of 
Smith  V.  City  of  Rochester,  92  N.  Y,  463.  In  a  very  elabo- 
rate and  learned  opinion,  that  court  decided  (in  June,  1883) 
that  "riparian  owners  of  land,  adjoining  fresh-water  non-naviga- 
ble streams,  as  an  incident  of  their  ownership  acquire  the  right 
to  the  usufructuary  enjoyment  of  the  undiminished  and  undis- 
turbed flow  of  said  stream.  This  is  also  true  of  the  fresh-water 
navigable  streams  and  small  lakes  within  the  state  where  the 
tide  does  not  ebb  and  flow;  save  that  the  public  has  an  ease- 
ment in  such  waters  for  the  purpose  of  travel,  as  on  a  public 
higliway,  which  easement,  as  it  pertains  to  the  sovereignty  of 
the  state,  is  inalienable,  and  gives  to  the  state  the  right  to  use, 
regulate,  and  control  the  waters  for  the  purposes  of  navigation. 
This  public  easement  gives  the  state  no  right  to  convert  the  wa- 

*Se8  also  the  elaborate  editorial  can,  are  collected,  and  the  special 

note    to    Heath    v.    Williams,  43  rules  established  by  them  are  for- 

Amcr.  Dec.  269-279,  in  which  nu-  mulated. 
merous  cases,  English  and  Ameri- 

(8) 


Ch.  2.]  COMMON-LAW    DOCTRINE.  §   6 

ters,  or  to  authorize  their  conversion,  to  any  other  uses  than 
those  for  which  the  easement  exists;  that  is,  for  the  purposes 
of  navigation.  The  right  to  divert  the  water  for  other  uses,  al- 
though public  in  their  nature,  can  only  be  acquired  under  and 
by  virtue  of  the  sovereign  right  of  eminent  domain,  and  upon 
making  just  compensation.  This  doctrine  concerning  the  rights 
of  riparian  owners  does  not,  however,  appl}'  to  the  vast  fresh- 
water lakes  or  inland  seas  between  the  United  States  and  Can- 
ada, nor  to  streams  forming  the  boundary  lines  of  states.  The 
rights  of  riparian  owners  on  the  Hudson  and  Mohawk  rivers,  in 
New  York,  are  derived  from  the  rules  of  the  civil  law  as  it  pre- 
vailed in  the  Netherlands  during  the  colonial  period."  The 
facts  of  this  case  well  illustrate  the  workings  of  the  common-law 
rules.  Hemlock  lake  is  a  small  lake  in  the  interior  of  New  York, 
about  seven  miles  long  and  one  and  a  half  wide.  It  is  to  a  cer- 
tain extent  navigable,  and  has  been  navigated  with  small  craft 
by  the  residents  on  its  borders.  The  decision,  it  will  be  seen, 
treats  it  as  navigable.  Its  surplus  waters  form  a  stream  which 
is  unnavigable.  On  this  stream,  near  the  outlet  of  the  lake, 
the  plaintiff  has  a  mill,  and  the  water  of  the  stream  was  suffi- 
cient to  keep  the  mill  in  operation  throughout  the  entire  year. 
In  1873,  under  authority  conferred  by  the  legislature  of  the 
state,  the  city  of  Rochester  constructed  a  conduit  or  aqueduct 
from  this  lake  to  the  city,  for  the  purpose  of  furnishing  a  sup- 
ply of  water  to  its  inhabitants.  By  this  aqueduct  over  4,000,- 
000  gallons  daily  were  drawn  from  the  lake,  and  the  flow  of 
surplus  water  through  the  natural  outlet  was  so  diminished  that 
the  operations  of  the  plaintiff's  mill  were  seriously  interfered 
with,  and  in  some  parts  of  the  year  entirely  stopped.  No  com- 
pensation was  paid  or  offered  by  the  city  to  the  plaintiff.  On 
these  facts  the  court  held,  in  pursuance  of  the  doctrines  above 
quoted,  that  the  plaintiff'  was  entitled  to  relief  against  the  city. 

(9) 


§  8  COMMON-LAW    DOCTRINE.  [Ch.  2. 

§  7.     Specific  rules  stated. 

From  this  general  doctrine,  the  following  more  specific  rulea 
necessarily  follow.  A  riparian  j)roprietor  need  not  have  actu- 
ally appropriated  the  water  of  a  stream,  in  order  that  he  may 
be  entitled  to  complain  of  a  diversion  by  another  proprietor; 
actual  damages  are  not  necessary,  for  damage  is  conclusively 
presumed  from  any  such  diversion.*  A  riparian  proprietor  can- 
not consume  the  entire  stream  for  any  purpose.  He  may  ap- 
propriate the  water  for  his  own  necessary  uses,  but  this  right 
must  be  reasonably  exercised,  and  there  must  be  no  substantial 
diminution  or  waste.^  The  editorial  note  cited  below,  sums  up 
the  common-law  doctrine,  as  the  result  of  the  American  and 
English  cases,  as  follows:  "The  general  principle  is  that  every 
owner  of  land  through  which  a  natural  stream  of  water  flows 
(or  abutting  on  a  natural  inland  lake)  has  a  usufruct  in  the 
stream  as  it  passes  along,  and  has  an  equal  right  with  those 
above  and  below  him  to  the  natural  flow  of  the  water  in  its  ac- 
customed channel,  without  unreasonable  detention  or  substan- 
tial diminution  in  quantity  or  quality,  and  none  can  make  any 
use  of  it  prejudicial  to  the  other  owners,  unless  he  has  acquired 
a  right  to  do  so  by  license,  grant,  or  prescription." 

§  8.     Riparian    owner's    right    to    natural   flow  of 
stream. 
[It  is  a  familiar  and  uniform  rule  of  the  common  law — recog- 
nized and  enforced  by  the  courts  both  in  this  country  and  in 

'Adams  v.  Barney,   25  Vt.  225.  diminution    or    alteration.      Bud- 

Nor  is  it  any  defense  to  an  action  dington  v.  Bradley,  10  Conn.  213. 

for  diverting  water  from  a  riparian  ^Hee  Adams  v.    Barney,  25  Vt. 

proprietor  to  show  that  no  injury  225;  Townsend  v.    McDonald,    12 

would  have  accrued  to  him  if  he  N.  Y.  381;  Pillsbury  v.  Moore,  44 

had  not  changed  the  manner  or  ex-  Me.  154;  Bliss  v.  Kennedy,  43  111, 

tent  of  his  use,  because,  independ-  67;  and  other  cases  cited  in   the 

ent  of  any  particular  use  of  or  for  editorial  note  in  43  Amer.  Dec.  274, 

it,  he  has  the  right  to  the  flow  of  275. 
the  water  on  his  own  land  without 

(10) 


Ch.  2.] 


COMMON-LAW    DOCTRINE. 


§8 


England — that  every  riparian  proprietor,  as  an  incident  to  his 
estate,  is  entitled  to  the  natural  flow  of  the  water  of  running 
streams  through  his  land,  in  their  accustomed  channels,  un- 
diminished in  quantity  and  unimpaired  in  quality;  that  no  one 
can  lawfully  divert  the  water  from  his  premises;  and  that  none 
of  the  riparian  owners  can  use  the  water  to  the  material  injury 
of  those  above  or  below  him,  although  all  have  a  right  to  the 
reasonable  use  of  it  for  the  ordinary  purposes  of  life.^  In  this 
connection,  the  following  language  of  Chancellor  Kent  is  fre- 
quently cited,  as  embodying  a  terse  and  accurate  statement  of 
the  rule:  "Every  proprietor  of  lands  on  the  banks  of  a  river  has 
naturally  an  equal  right  to  the  use  of  the  water  which  flows  in 
the  stream  adjacent  to  his  lands  as  it  was  wont  to  run,  (currere 
solebat,)  without  diminution  or  alteration.  No  proprietor  has  a 
right  to  use  the  water  to  the  prejudice  of  other  proprietors,  above 
or  below  him,  unless  he  has  a  prior  right  to  divert,  or  a  title  to 


lEmbrey  v.  Owen,  6  Exch.  352; 
Wood  V.  Waud,  3  Exch.  748;  Bea- 
ley  V.  Shaw,  6  East,  208;  Mason  v. 
Hill,  3  Barn.  &  Add.  304;  Wright 
V.  Howard,  1  Sim.  &  S.  190;  Orr 
Ewing  V.  Colquhoun,  L.  R.  2  App. 
Cas.  839;  Chasemore  v.  Richards, 
7  H.  L.  Cas.  349;  Tyler  v.  Wilkin- 
son, 4  Mason,  397;  Pillsbiiry  v. 
Moore,  44  Me.  154;  Cowles  v.  Kid- 
der, 24  N.  H.  364;  Tillotson  v. 
Smith,  32  N.  H.90;  Martin  v.  Bige- 
low,  2  Aiken,  184;  Merrifield  v. 
Lombard,  13  Allen,  16;  Pratt  v. 
Lamson,  2  Allen,  275;  Springfield  v. 
Harris,  4  Allen,  494;  King  v.  Tiffa- 
ny, 9  Conn.  162;  Buddington  v. 
Bradley,  10  Conn.  213;  Wadsworth 
V.  Tillotson,  15  Conn.  366;  Clinton 
V.  Myers,  46  N.  Y.  511;  Arnold  v. 
Foot,  12  Wend.  330;  Hoy  v.  Ster- 
rett,  2  Watts,  327;  Holsman  v. 
Boiling  Springs  Co.,  14  N.  J.  Eq. 
335;  Ten  Eyck  v.  Delaware  Canal 


Co.,  18  N.  J.  Law,  200;  Mayor  of 
Baltimore  v.  Appold,  42  Md.  442; 
Omelvany  v.  Jaggers,  2  Hill,  (S. 
C.)  684;  Hendrick  v.  Cook,  4  Qa. 
241;  Hendricks  v.  Johnson,  6  Port. 
(Ala.)472;  Potierv.  Burden,  38  Ala. 
651;  Rhodes  V.  Whitehead,  27  Tex. 
304;  Shamleffer  v.  Council  Grove 
Mill  Co.,  18  Kan.  24;  Cooper  v. 
Williams,  4  Ohio,  253;  Case  v. 
Weber,  2  Ind.  108;  Billing  v.  Mur- 
ray, 6  Ind.  334;  Mitchell  v.  Parks, 
26  Ind.  354;  Evans  v.  Merriweather, 
3  Scam. ;  492.  Plumleigh  v.  Dawson, 
1  Gilman,  544;  Rudd  v.  Williams, 
43  111.  385;  Druley  v.  Adam,  102 
111.  177;  Davis  v.  Getchell,  50  Me. 
604;  Vliet  v.  Sherwood,  35  Wis. 
229;  Lux  v.  Haggin,  (Cal.)  10  Pac. 
Rep.  753;  Taylor  v.  Welch,  6  Or. 
198;  Coffman  v.  Robbins,  8  Or. 
278;  3  Kent,  Comm.  *439;  Ang. 
Water-Courses,  §  95;  Gould,  Wa- 
ters, g  204. 

(11) 


J  9  COMMON-LAW    DOCTRINE.  [Ch.  2. 

some  exclusive  enjoyment.  He  has  no  property  in  the  water 
itself,  but  a  simple  usufruct  wliile  it  passes  along.  Aqua  mrrit 
€t  debet  currere,  is  the  language  of  the  law.  Though  he  may  use 
the  water  while  it  runs  over  his  land,  he  cannot  unreasonably 
detain  it,  or  give  it  another  direction,  and  he  must  return  it  to 
its  ordinary  channel  when  it  leaves  his  estate."^ 

§  9.     This  right  is  parcel  of  the  realty. 

Altlii>uj;h,  as  above  stated,  the  riparian  owner  has  no  prop- 
erty in  tlie  water  itself,  but  only  a  usufructuary  enjoyment  of  it 
as  it  passes  through  or  along  his  lands,  yet  it  is  not  to  be  in- 
ferred that  his  right  to  have  the  stream  flow  in  its  natural  chan- 
nel, without  diminution  or  alteration,  is  merely  appurtenant  to 
the  estate,  or  conditioned  upon  his  actual  application  of  it  to 
some  beneficial  use.  "By  the  common  law,"  say  the  court  in 
California,  "the  right  of  the  riparian  pro])rietor  to  the  flow  of 
the  stream  is  inseparably  annexed  to  the  soil,  and  passes  with 
it,  not  as  an  easement  or  appurtenance,  but  as  part  and  parcel 
of  it.  Use  does  not  create  the  right,  and  disuse  cannot  destroy 
or  susjiend  it.  The  right  in  each  extends  to  the  natural  and 
usual  flow  of  all  the  water,  unless  where  the  quantity  has  been 
diminished  as  a  consequence  of  the  reasonable  application  of  it 
by  other  riparian  owners  for  purposes  hereafter  to  be  men- 
tioned."* 

A  right  to  the  flow  of  water,  then,  is  a  corporeal  right  or  here- 
ditament which  passes  by  grant  of  the  land  over  which  it  runs. 

'3  Kent.  Comm.  *439.  v.  Wilkinson,  4  Mason,  397;  Samp- 

*Lux  V.  Ilaggin,  (Cal.)   10  Pac.  son  v.  Hoddinott,  1  C.  B.(N.  S.)590; 

Rep.    753;     citing    Ang.     Water-  Hill  v.  Newman,  5  Cal.  445;  Pope 

Courses.  ^  93;  Hhury  v.    Piggot,  v.  Kinman,  54  Cal.  3;  Creighton  v. 

Bulst.   339;    Countess  of  Rutland  Evans,  53Cal.  55;  Ferrea  v.  Knipe, 

y.    Bowler.  Palmer,   290;   Washb.  28  Cal.  340;  Eale  v.  McLea,  53  Cal. 

Easem.  319;  Gould,  Waters,  g  204;  578;  Hanson  v.  McCue.  42  Cal.  303. 

Johnson  v.  Jordan.  2    Mete.  239;  See,  also,  Wadsworth  v.  Tillotson, 

Cary  v.  Daniels, 5  Mete.  238;  Tyler  15  Conn.  366. 
(12) 


Ch.  2.]  COMMON-LAW    DOCTRINE.  §    11 

It  may  be  conveyed  absolutely,  or  lost  or  acquired,  either  wholly 
or  in  part,  by  an  adverse  user,  sufficiently  long,  exclusive,  and 
notorious  to  furnish  adequate  grounds  for  presumption  of  a 
grant.  ^ 

§  10.     Diversion,  "v^hen  permissible. 

It  is  also  a  right  of  the  riparian  owner,  at  common  law,  to 
have  the  stream  flow  in  its  natural  channel  without  diversion. 
But  this  right  extends  no  further  than  the  boundaries  of  his  own 
estate.  He  cannot  complain  of  the  mere  fact  of  a  diversion  of 
the  water-course,  either  above  or  below  him,  if,  wdthin  the  lim- 
its of  his  own  property,  it  is  allowed  to  follow  its  accustomed 
channel.  Hence  it  is  not  unlawful  to  change  the  course  of  a 
stream  within  the  limits  of  one's  own  land,  if  the  stream  is  re- 
turned to  its  natural  channel  before  leaving  the  land,  and  its 
flow  is  not  materially  diminished.^ 

§  11.     Exceptions  to  common-la-w  rule  against  ap- 
propriation. 

There  are  some  cases,  even  at  common  law,  where  a  prior 
appropriation  will  give  the  occupant  superior  privileges  over  the 
other  proprietors  on  the  same  stream.  Thus,  in  a  Massachu- 
setts decision,  it  is  held  that  the  riparian  proprietor,  who  first 
erects  his  dam  for  reasonable  mill  purposes,  has  a  right  to  main- 
tain it  as  against  proprietors  above  and  below,  although  by  so 
doing  the  others  are  prevented  from  placing  dams  and  mills  on 
their  land.  In  such  case,  prior  occupancy  gives  a  prior  right 
to  such  use.  In  the  case  referred  to,  Shaw,  C.  J.,  said:  "The 
usefulness  of  water  for  mill  purposes  depends  as  well  on  its  fall 
as  its  volume.  But  the  fall  depends  upon  the  grade  of  the  land 
over  which  it  runs.     The  descent  may  be  rapid,  in  which  case 

iLux  V.  Haggin,  (Cal.)  4  Pac.  spettibone  v.Smith,37Mich.579; 
Kep.  919.  2S[orton  v.  Volentine,  14  Vl.  239. 

(13J 


§11  COMMON-LAW    DOCTRINE.  [Ch.  2. 

there  may  be  fall  enough  for  mill-sites  at  short  distances;  or  the 
descent  may  be  so  grailual  as  only  to  admit  of  mills  at  consid- 
enible  distances.  In  the  latter  case,  the  erection  of  a  mill  on 
one  proprietor's  land  may  raise  and  set  the  water  back  to  such 
a  distance  as  to  prevent  the  proprietor  above  from  having  suffi- 
cient full  to  erect  a  mill  on  his  land.  It  seems  to  follow,  as  a 
necessary  consequence  from  these  principles,  that  in  such  case 
the  proprietor  who  first  erects  his  dam  for  such  a  purpose  has  a 
right  to  maintain  it  as  against  the  proprietors  above  and  below; 
and  to  this  extent  prior  occupancy  gives  a  prior  title  to  such 
use.  It  is  a  profitable,  beneficial,  and  reasonable  use,  and 
therefore  one  which  he  has  a  right  to  make.  If  it  necessarily 
occupy  so  much  of  the  fall  as  to  prevent  the  proprietor  above 
from  placing  a  dam  and  mill  on  his  land,  it  is  damnum  absque 
injuria.  For  the  same  reason  the  proprietor  below  cannot  erect 
a  dam  in  such  a  manner  as  to  raise  the  water  and  obstruct  the 
wheels  of  the  first  occupant.  He  had  an  equal  right  with  the 
proprietor  below  to  an  equal  use  of  the  stream;  he  had  made 
only  a  rea.sonable  use  of  it;  his  appropriation  to  that  extent,  be- 
ing justifiable  and  prior  in  time,  necessarily  prevents  the  pro- 
prietor below  from  raising  the  water,  without  interfering  with  a 
rightful  use  already  made;  and  it  is  therefore  not  an  injury  to 
him.  Such  appears  to  be  the  nature  and  extent  of  the  prior 
and  exclusive  right  which  one  proprietor  acquires  by  a  prior 
reasonable  appropriation  of  the  use  of  the  water  in  its  fall;  and 
it  results,  not  from  any  originally  superior  legal  right,  but  from 
a  legitimate  exercise  of  his  own  common  right,  the  effect  of 
which  is,  de  facto,  to  supersede  and  prevent  a  like  use  by  other 
proprietors  originally  having  the  same  common  right.  It  is,  in 
this  respect,  like  the  right  in  common,  which  any  individual 
has,  to  use  a  highway.  While  one  is  reasonably  exercising  his 
own  right,  by  a  temporary  occupation  of  a  particular  part  of  a 
street  with  his  carriage  or  team,  another  cannot  occupy  the  same 
(14) 


I 


Ch.  2.]  COMMON-LAW    DOCTRINE.  §   11 

place  at  the  same  time."^  It  is  to  be  remarked,  however,  that 
the  appropriation  here  sanctioned  was  not  of  the  stream  itself, 
— at  least,  not  to  its  whole  extent, — but  only  of  its  power  to 
drive  machinery.  The  other  riparian  owners  would  continue 
in  the  enjoyment  of  the  water  for  all  the  purposes  to  which 
it  could  ordinarily  be  put,  except  this  one.  Hence  this  apparent 
departure  from  the  doctrine  of  the  common  law  could  not  be  in- 
voked in  aid  of  one  who  should  entirely  divert  the  water-course, 
or  appropriate  its  whole  volume  to  his  private  uses.  And  it  is 
proper  to  add  that  this  rule  has  been  repudiated  in  certain  other 
states,  or  else  conditioned  upon  a  continuance  of  the  appropria- 
tion for  such  a  period  of  time  as  would  be  requisite  to  establish 
rights  by  prescription.^] 

iCary  v.  Daniels,  8  Mete.  466,  s.  Ill  Mass.  465;  Lincoln  v.  Chad- 

c.  41   Amer.  Dec.  532.      And   see  bourne,  56  Me.  197;  Miller  v. Troost, 

Gould  V.  Boston  Duck  Co. ,13  Gray,  14  Minn.  365,  (Gil.  282.) 

451;  Fuller  v.  Chicopee  Manuf'g  ^See    Parker    v.    Hotchkiss,   25 

Co.,  16  Gray,  44;  Smith  v.  Agawam  Conn.  321;  Keeney  Manuf'g  Co.  v. 

Canal  Co.,  2  Allen,  857;  Pratt  v.  Union  Manuf'g  Co.,  39  Conn.  576; 

Lamson,  Id.  288;  Lowell  v.  Boston,  Dumont  v.  Kellogg,  29  Mich.  420. 

(15) 


5  12  ArFHorrtiATioN  of  waters.  [Ch.  3. 


CHAPTER  in. 

APPHOnUATIOX  OF  WATERS  FLOWING  THROUGH  THE 
PUBLIC  DOMAIN. 

L    OnKiiN  AND  Basis  of  the  Right  to  AppuorniATB. 
§  12.     Scope  of  the  present  chapter. 

13.  Early  importance  of  miuiug  interests. 

14.  Minini,'  customs. 

1.5.     Doctrine  of  appropriation. 

16.  Appropriation  not  at  first  availing  as  against  the  govern 

ment. 

17.  The  act  of  congress  of  1866. 

18.  Limits  of  the    doctrine  of   appropriation  —  The    early 

cases. 

19.  Views  of  the  United  States  supreme  court. 

20.  Grounds  of  these  decisions. 

21.  Doctrine  of  appropriation  unknown  to  the  common  law. 

22.  Basis  of  right  to  appropriate  water. 

23.  Grounds  for  presumption  of  license. 

24.  Efficacy  of  miners'  customs. 

XL      Ari'KOfKIATION   AS   AGAINST    THE    SUBSEQUENT    GrANTEE   OF  THE 
GOVEHNMENT. 

§  2.5.     Title  of  subsequent  grantee  is  subject  to  prior  appropri- 
ation. 

26.  California  decisions  on  this  jioint. 

27.  Views  of  United  States  supreme  court. 

28.  The  act  of  1870  is  declaratory  only. 

29.  Public  lands  of  the  state. 

in.    TiiK  Right  Restuicted  to  the  Public  Domaht. 
§  30.     Apprf)priation  confined  to  public  lands. 

31.  .Jurisdiction  of  state  and  United  States  distinguished. 

32.  Power  of  government  to  annex  conditions  to  grants. 
IV.    Conklkting  Claims  between  Settlers  and  Appropkiators. 

§  33.  Converse  of  doctrine  of  appropriation. 

34.  When  title  from  United  States  is  perfected. 

5').  When  paten:ee's  riparian  rights  vest. 

86.  Review  of  the  authorities  on  this  point. 

87.  Riparian  rights  protected. 

8S.  Doctrine  of  relation  applied  to  patentees. 

89.  Grounds  for  the  application  of  this  doctrine. 

40.  California  decisions. 

41.  Review  of  the  cases. 

42.  Riparian  rights  under  Mexican  grants. 

43.  Summary  of  conclusions. 

(10; 


Ch.  3.]  APPROPKIATION   OF   WATERS.  §   IS 

I.     Origin  and  Basis  of  the  Right  to  Appropriate. 

§  12.     Scope  of  the  present  chapter. 

Having  stated  the  fundamental  doctrines  of  the  common  law 
concerning  the  use  of  running  streams  and  small  inland  lakes, 
and  the  rights  of  riparian  owners,  as  established  by  the  general 
consensus  of  English  and  American  decisions,  I  shall  proceed 
to  examine,  with  more  of  detail,  the  variations  from  *these  doc- 
trines which  have  been  made  by  the  courts  or  recognized  by 
the  legislation  of  the  Pacific  commonwealths.  In  this  division 
of  the  subject  it  will  be  expedient  to  notice,  in  the  first  place, 
certain  matters,  connected  with  various  conditions  of  fact,  which 
may  be  regarded  as  settled,  and  subsequently  to  discuss  those 
questions  which  are  still  open,  and  which  admit  of  conflicting 
opinions,  or  involve,  perhaps,  a  conflict  of  decision. 

§  13.     Early  importance  of  mining  interests. 

From  the  time  of  the  discovery  of  gold  in  California  the  min- 
ing interests  became,  and  for  many  years  continued  to  be  in 
that  state,  and  still  are  in  other  Pacific  states  and  territories,  of 
paramount  importance,  to  which  agriculture,  manufacturing, 
and  all  other  industries  were  subordinated.  The  lands  contain- 
ing the  minerals  belonged  almost  entirely  to  the  public  domain 
of  the  United  States.  Vast  numbers  of  immigrants  poured  over 
these  mineral  regions,  settled  down  in  every  direction,  appro- 
priated parcels  of  the  territory  to  their  own  use,  and  were  pros- 
pecting and  mining  in  every  mode  rendered  possible  by  their 
own  resources,  under  no  municipal  law,  and  with  no  restraint 
except  that  of  superior  physical  force.  "The  world  has  proba- 
bly never  seen  a  similar  spectacle, — that  of  extensive  gold  fields 
suddenly  peopled  by  masses  of  men  from  all  states  and  coun- 
POM.RIP. — 2  (17) 


I   14  APPROPRIATION   OF    WATERS.  [Ch.  3. 

tries,  restrained  by  no  law,  and  not  agreed  as  to  whence  the  laws 
ouiihi  to  emanate  by  wliicli  they  would  consent  to  be  bound."  ^ 

§  14.     Mining  customs. 

In  this  condition  of  allairs,  the  miners  themselves  adopted 
ttcrtain  "mining  customs"  to  which  they  yielded  a  voluntary 
•bediencc,  and  which  were  afterwards  recognized  and  sanctioned 
by  the  legislation  of  the  state  and  of  congress.  Scattered  over 
the  territory  at  "camps,"  "bars,"  and  "diggings,"  the  miners 
Leld  meetings  in  each  district  or  locality,  and  enacted  regula- 
tions by  wliicli  they  agreed  to  be  governed.  The  rules  once 
adopted  were  enforced  with  rigor  upon  all  settlers  in  the  particu- 
lar camp.  The  legislature  of  California,  at  the  session  of  1851, 
gave  to  these  voluntary  regulations  a  legal  and  compulsive  effi- 
cacy by  the  following  brief  but  admirably  comprehensive  statute: 
"  In  actions  concerning  mining  claims,  proof  shall  be  admitted  of 
the  customs,  usages,  or  regulations  established  or  in  force  at  the 
fear  or  diggings  embracing  said  claims,  and  such  customs,  usages, 
©r  regulations,  when  not  in  conflict  with  the  constitution  and  laws 
ef  this  state,  shall  govern  the  decision  of  the  action."  These 
"mining  customs"  or  rules  were  simple,  and  related  to  the  ac- 
quisition of  "claims"  to  mineral  lands  and  to  water  for  the  pur- 
poses of  mining,  and  prescribed  the  acts  necessary  to  constitute 
such  an  appropriation  of  a  parcel  of  mineral  land  or  portion  of 
a  stream  as  should  give  the  claimant  a  prior  right  against  all 
ethers,  the  amount  of  work  which  would  entitle  him  to  a  con- 
tinued possession  and  enjoyment,  Avhat  would  constitute  anaban- 
Uonment,  and  similar  matters.^  In  this  proceeding  we  find  the 
©rigin  of  the  peculiar  doctrines  concerning  water-rights  as  set- 

*  As  to  the  early  history  of  gold  ate   water,   etc.,   see    remarks    of 

mining  on  the  Pacific  coast,  the  Field,  J.,  in  Jennison  v.  Kirk,  98 

eiistoms   adopted   by  the   miners,  U.  S.  453. 

Ihe  origin  of  the  right  to  appropri-  ^See  infra,  §  24. 

(18) 


Ch.   3.]  APPROPRIATION   OF  WATERS.  §    15 

tied  in  the  Pacific  communities.  Water  was  an  indispensable 
requisite  for  carrying  on  mining  operations;  a  permanent  right 
to  use  certain  amounts  of  water  was  as  essential  as  the  pernm- 
nent  right  to  occupy  a  certain  parcel  of  mineral  land.  The 
streams  and  lakes  were  all  on  the  public  domain.  For  their  ad- 
vantageous employment  it  was  often  necessary  to  divert  water 
from  its  natural  bed,  and  to  carry  it  througli  artificial  channels, 
— "ditches"  or  "flumes," — sometimes  of  great  length  and  con- 
structed at  an  enormous  cost.  There  were  no  riparian  owners 
or  occupants  except  the  miners,  and  the  streanas  could  be  put 
to  no  beneficial  use  except  for  purposes  of  mining.  From  all 
these  circumstances,  and  from  the  very  necessities  of  the  situ- 
ation, it  universally  became  one  of  the  mining  customs  or  reg- 
ulations that  the  right  to  use  a  definite  quantity  of  water,  and  , 
to  divert  it  if  necessary  from  these  streams  and  lakes,  could  be 
acquired  by  j^rior  ajDpropriation. 

§  15.     Doctrine  of  appropriation. 

The  custom  thus  originating  was  soon  approved  by  the  courts, 
and  the  doctrine  became  and  still  is  settled  in  California  and 
other  Pacific  states  and  territories,  in  opposition  to  the  common 
law,  that  a  permanent  right  of  property  in  the  water  of  streams 
or  inland  lakes,  which  wholly  ran  through  or  were  situate  upon 
the  public  lands  of  the  United  States,  may  be  acquired  for  min- 
ing purposes  by  mere  prior  appropriation;  that  a  prior  appro- 
priator  may  thus  acquire  the  right  to  divert,  use,  and  consume 
a  quantity  of  water  from  the  natural  flow  or  condition  of  such 
streams  or  lakes,  which  may  be  necessary  for  the  purposes  of  his 
mining  operations;  and  that  he  becomes,  so  far  as  he  has  thus 
made  an  actual  prior  appropriation,  the  owner  of  the  water  as 
against  all  the  world,  except  the  United  States  government.  This 
doctrine,  applied  at  first  to  the  operations  of  mining,  has  been 
extended  to  aU  other  beneficial  purposes  for  which  water  may  be 

(19) 


§    16  APPROPRIATION   OF   WATERS.  Cll.  3. J 

essential, — to  niillini^,  manufacturing,  agricultural,  irrigating, 
anil  niunicijial  purposes.^ 

§  16.     Appropriation  not  at  first  availing  as  against 
the  government. 

[It  is  very  imjjortaiit  to  be  noted  that  the  right  of  property 
in  running  waters  by  appropriation,  thus  recognized  by  the 
courts  and  sanctioned  by  legislation,  had  as  yet  acquired  no  va- 
lidity whatever  as  against  the  federal  government  or  its  grantee. 
In  this  respect,  however  clear  might  be  the  superior  rights  of 
a  i)rior  appropriator  as  against  another  person  not  the  owner  of 
the  soil,  they  acquired  no  sanction  as  aga,inst  the  United  States, 
or  its  patentee,  until  the  act  of  congress  of  1866.  Hence  it  has 
never  been  held  by  the  supreme  court  of  the  United  States,  or 
by  the  state  courts,  that  an  appropriation  of  water  on  the  pub- 
lic domain,  made  after  the  act  of  congress  of  1866,  (or  that  of 
1870,)  gave  to  the  appropriator  the  right  to  the  water  appro- 
l)riated  as  against  a  grantee  of  riparian  lands  under  a  grant 
made  or  issued  prior  to  the  act  of  1866,  except  in  a  case  where 
the  water  so  subsequently  appropriated  was  reserved  by  the 

^Californin.  Parks  Canal,  etc.,  Co.,  58  Cal.  142;  Himes  v.  John- 
Co.  V.  Hoyt,  57  Cal.  44;  Hill  v.  son,  61  Cal.  259.  Nevada.  Strait  v. 
Smith.  27  Cal.  480;  Wi.xon  v.  Bear  Brown,  16  Nev.  317;  Barnes  v.  Sa- 
River.  etc..  Co..  24  Cal.  367;  Phce-  bron,  10  Nev.  217;  Ophir  Silver  M. 
nix  W.  Co.  V.  Fletcher,  23  Cal.  481;  Co.  v.  Carpenter,  4  Nev.  534;  Lob- 
Kidd  V.  Laird.  15  Cal.  162;  Ortnian  dell  v.  Simpson,  2  Nev.  274.  Col- 
V.  Dixon,  13  Cal.  33;  McDonald  v.  orado.  Schilling  v.  Kominger,  4 
Bear  River,  etc.,  Co.,  Id.  220;  Bear  Colo.  100.  Utah.  Crane  v.  Winsor, 
River,  etc.,  Co.  v.  New  York  Min.  2  Utah,  248.  Montana.  Atchison 
Co.,  8  Cal.  327;  Crandall  v.  Woods,  v.  Peterson,  1  Mont.  561.  For  pur - 
Id.  136;  Hill  V.  Kint',  Id.  336;  Uoll-  poses  of  irrifjation,  etc.  Barnes  v. 
man  v.  Stone,  7  Cal.  46;  Kelly  v.  Sabron,  10  Nev.  217;  Lobdell  v. 
Natoma  W.  Co.,  6  Cal.  107;  Hill  v.  Simpson,  2  Nev.  274.  Ofmanufact- 
Newman,  5  Cal.  445;  Irwin  v.  Phil-  uring  or  milling.  McDonald  v.  Bear 
lips,  Id.  140;  and  see.  also,  Maeris  River,  etc.,  Co.,  13  Cal.  220;  Ort- 
v.  Bicknell,  7  Cal.  261,  262;  Neva-  man  v.  Dixon,  Id.  33;  and  see  note 
da,  etc.,  Co.  v.  Kidd,  37  Cal.  282,  in  43  Amer.  Dec.  279,  280. 
312;  Farley  v.   Spring  Valley  M. 

C20) 


Ch.  3.]  APPROPRIATION    OF    WATERS.  §    16 

terms  of  such  grant.'  This  principle  is  asserted — and  is  clearly- 
deduced  from  the  authorities — in  a  recent  decision  of  the  su- 
preme court  of  California;^  from  which  we  quote  as  follows:  "  In 
the  case  of  Van  Sickle  v.  Haines,  7  Nev.  249,  the  plaintiff  had 
diverted  one-fourth  of  the  water  of  Daggett  creek  in  the  year 
1857.  He  made  the  diversion  at  a  point  then  on  the  public 
land,  but  which,  in  1864,  was  patented  by  the  United  States 
to  the  defendant  Haines.  In  1865,  Vansickle  obtained  a  pat- 
ent for  his  own  land,  where  he  used  the  water.  In  1867,  Haines 
constructed  a  wood  flume  on  his  land,  and  turned  into  it  all  the 
water  of  the  stream,  thereby  depriving  the  plaintiff  of  that  part 
of  it  which  he  had  been  using.  The  supreme  court  of  Nevada 
held  that  the  plaintiff,  by  his  appropriation  of  water  prior  to 
the  date  of  defendant's  patent,  acquired  no  right  which  could 
affect  that  grant;  and  that  while  the  act  of  congress  of  July, 
1866,  protected  •  those  who  at  that  time  were  diverting  water 
from  its  natural  channels  on  the  public  lands;  and  while  all 
patents  issued  or  titles  acquired  from  the  United  States  since 
that  date  are  obtained  subject  to  the  rights  of  water  by  appro- 
priation existing  at  that  time,  yet,  with  respect  to  patents  for 
riparian  lands  issued  before  the  act  of  congress,  the  patentee  had 
already  acquired  the  right  to  the  flow  of  the  water,  with  which 
congress  could  not  interfere."  The  court  continued:  "Broder 
V.  Water  Co.,  101  U.  S.  274,  may  appear  to  be  in  conflict  with 
Yansickle  v.  Haines.  But  is  there  any  real  conflict?  It  will 
be  observed  that  the  Broder  Case  turned  (so  far  as  the  plain- 
tiffs title  from  the  railroad  company  was  concerned)  on  the  res- 
ervation clause  in  the  act  constituting  the  grant  to  the  company, 
and  the  court  held  that  'a  lawful  claim,'  within  the  meaning 
of  the  reservation  in  the  act  of  1864,  was  'any  honest  claim  ev- 
idenced by  improvements  and  other  acts  of  possession.'     The 

»Lux  V.  Haggin,  (Cal.)  10  Pac.  Rep.  734.  2  id.  725. 

(21) 


I 


§  17  ArrRonuATioN  of  watebs.  [Ch.  3. 

coii:jiruoiinn  ^'ivoii  to  the  lani,'iiage  of  the  reservation,  of  course, 
implies  that  those  wlioapprojjriatetl  hinds  or  waters  on  the  pub- 
lic lanils,  prior  to  the  acts  of  1S64  or  1866,  had  not  been  treated 
by  the  government  in  those  acts  as  mere  trespassers,  but  as  there 
by  license.  It  does  not  imply  that  they  had  acquired  any  title 
whicli  could  be  asserted  against  the  United  States  or  its  grantees, 
except  so  far  as  tlieir  occupations  of  land  or  water  were  pro- 
tected and  reserved  to  tliem  by  acts  of  congress."] 

§  17.     The  act  of  congress  of  1866. 

The  right  of  property  thus  settled  by  state  courts  availed 
against  all  persons  except  the  United  States  government.  This 
limitation  was  soon  removed.  The  United  States  governmen"t 
recognized  the  right  to  water  on  the  public  domain,  thus  ac- 
quired by  prior  appropriation,  as  a  substantial  and  valid  right 
which  the  government  was  bound  to  acknowledge  and  protect; 
and  it  repeatedly  approved  and  adopted  the  doctrine  which  had 
sprung  from  the  mining  customs  and  been  settled  by  the  state 
and  territorial  decisions.^  This  view  was  expressly  confirmed 
by  a  statute  of  congress  passed  July  26,  1866:^  "Whenever, 
by  priority  of  possession,  rights  to  the  use  of  water  for  mining, 
agricultural,  manufacturing,  or  other  purposes  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknowledged  by  the 
local  customs,  laws,  and  decisions  of  courts,  the  possessors  and 
owners  of  such  vested  rights  shall  be  maintained  and  respected 
in  the  same;  and  the  right  of  way  for  the  construction  of  ditches 
and  canals,  for  the  purposes  herein  specified,  is  acknowledged 
and  confirmed."  This  statute,  it  is  held  by  the  United  States 
Eujjreme  court,  does  not  create  the  right;  but  it  is  "rather  a 
voluntary  recognition  of  a  pre-existing  right  of  possession,  con- 

iBroder  v.  Natorua  Water  Co.,  20  Wall.  670;  Atchison  v.  Peterson, 
101  U.  S.  274;  Basey  v.  Gallagher.      Id.  507. 

2  Rev.  St.  U.  S.  §2339. 
(22) 


Ch.   3.]  APPROPRIATION    OF  WATERS.  §    18 

stituting  a  valid  claim  to  its  continued  use,  than  the  establish- 
ment of  a  new  one."^ 

§  18.     Limits  of  the  doctrine  of  appropriation — The 
early  cases. 

It  will  aid  in  the  subsequent  examination  of  the  open  ques- 
tions to  fix  the  exact  extent  and  limits  of  the  doctrine  thus  for- 
mulated, and  to  ascertain  the  grounds  upon  which  it  was  rested 
by  the  courts.  A  very  few  of  the  earliest  cases  enter  into  no 
discussion,  and  seem  to  speak  as  though  the  rule  were  univer- 
sal, applicable  to  all  waters  under  all  circumstances.^  But  most 
of  these  early  decisions  state  the  reasons  for  the  doctrine  in  the 
most  express  manner,  and  thus  indicate  its  grounds,  extent,  and 
limits.  One  or  two  illustrations  will  suffice.  In  Hoffman  v. 
Stone, ^  Murray,  C.  J. ,  said :  "  The  former  decisions  of  this  court, 
in  cases  involving  the  right  of  parties  to  appropriate  waters  for 
mining  and  other  purposes,  have  been  based  upon  the  icants  of 
the  community,  and  the  peculiar  condition  of  things  in  this  state,  (for 
which  there  is  no  precedent,)  rather  than  any  absolute  rule  of 
law  governing  such  cases.  The  absence  of  legislation  on  this 
subject  has  devolved  on  the  courts  the  necessity  of  framing  rules 
for  the  protection  of  this  great  interest,  and  in  determining  these 
questions  we  have  conformed,  as  nearly  as  possible,  to  the  an- 
alogies of  the  common  law.  The  fact  early  manifested  itself, 
that  the  mines  could  not  be  successfully  worked  without  a  pro- 
prietorship in  waters,  and  it  was  recognized  and  maintained. 
To  protect  those  who,  by  their  energy,  industry,  and  capital, 
had  constructed  canals  and  races  carrying  water  for  miles  into 

^Broder  v.  Natoma  Water  Co.,  the  courts.   Jones  v.  Adams,  (Nov.) 
101  U  S.  274.     The  act  of  congress  6Pac.  Rep.  442. 
of  1866  merely  confirms  to  land-  2 gee,  for  example.  Hill  v.  New- 
owners  the  rights   and  privileges  man,  5  Cal.  44.5;  Kelly  v.  Natom* 
Ihey  had  formerly  enjoyed  by  lo-  W.  Co.,  6  Cal.  107. 
cal  customs  and  the  decisions  of  ^7  Cal.  47,  48,  (1675.) 

(23) 


§    18  APPROPRIATION   OF    WATERS.  [Ch.  3. 

jiarts  of  the  country  whicli  must  have  otherwise  remained  un- 
fruitful and  undeveloped,  it  was  held  that  the  first  appropriator 
aoiuired  a  special  property  in  the  waters  thus  appropriated; 
and,  as  a  necessary  consequence  of  such  property,  might  invoke 
all  k-gal  remedies  for  its  enjoyment  or  defense,  A  party  appro- 
priating water  has  the  sole  and  exclusive  right  to  use  the  same 
for  the  purposes  for  which  it  was  appropriated,  and,  so  long  as 
he  is  not  obstructed  in  the  use  thereof,  he  has  no  ground  of  ac- 
tion." 

It  should  be  observed  that  the  waters  referred  to  in  this  opin-' 
ion  were  all  upon  public  lands.  In  the  case  of  Bear  River 
Min.  Co.  V.  New  York  Min.  Co.^  the  reasons  for  the  doctrine 
were  stated  by  Mr.  Justice  Burnett  more  fully:  "It  may  be  said 
with  truth  that  the  judiciary  of  this  state  has  had  thrown  upon 
it  responsibilities  not  incurred  by  the  courts  of  any  other  state 
in  the  Union.  We  have  had  a  large  class  of  cases  unknown  in 
the  jurisprudence  of  our  sister  states.  The  mining  interest  of 
the  state  lias  grown  up  under  the  force  of  new  and  extraordinary 
circumstances,  and  in  the  absence  of  any  specific  and  certain 
legislation  to  guide  us.  Left  without  any  direct  precedent,  as 
well  as  without  specific  legislation,  we  have  been  compelled  to 
apply  to  this  anomalous  state  of  things  the  analogies  of  the  com- 
mon law  and  the  more  expanded  principles  of  equitable  justice. 
There  being  no  known  system  existing  at  the  beginning,  parties 
were  left  without  any  certain  guide,  and  for  that  reason  have 
placed  themselves  in  such  conflicting  positions  that  it  is  impos- 
sible to  render  any  decision  which  will  not  produce  great  injury, 
not  only  to  the  parties  immediately  connected  with  the  suit, 
but  to  large  bodies  of  men,  who,  though  not  formal  parties  to 
the  record,  must  be  deeply  affected  by  the  decision.  No  class 
of  cases  can  arise  more  difficult  of  a  just  solution,  or  more  dis- 

»8Cal.  327,332,(1875.) 
(24) 


■Ch,  3.]  APPROPRIATION   OF  WATERS.  §    18 

tressing  in  practical  result.  The  business  of  gold  mining  was 
not  only  new  to  our  people,  and  the  cases  arising  from  it  new 
to  our  courts,  and  without  judicial  or  legislative  precedent, 
either  in  our  own  country  or  in  that  from  which  we  have  bor- 
rowed our  jurisprudence,  but  there  are  intrinsic  difficulties  in 
the  subject  itself  which  it  is  almost  impossible  to  settle  satisfac- 
torily, even  by  the  application  to  them  of  the  abstract  principles 
of  justice.  Yet  we  are  compelled  to  decide  these  cases,  because 
they  must  be  settled  in  some  way,  whether  we  can  say,  after  it 
is  done,  that  we  have  given  a  just  decision  or  not.  The  uses  of 
water  for  domestic  purposes,  and  for  the  watering  of  stock,  are 
preferred  uses,  because  essential  to  sustain  life.  Other  uses 
must  be  subordinate  to  these.  In  such  cases  the  element  is  en- 
tirely consumed.  Next  to  these  may  properly  be  placed  the 
use  of  water  for  irrigation  in  dry  and  arid  countries.  In  such 
•cases  the  element  is  almost  entirely  consumed.  Under  a  proper 
system  of  irrigation,  only  so  much  water  is  taken  from  the 
stream  as  may  be  needed,  and  the  whole  is  absorbed  or  evapo- 
rated. Entire  absorption  is  the  contemplated  result  of  irriga- 
tion. Where  properly  used  as  a  motive  power  for  propelling 
machinery,  the  element  is  not  injured,  because  the  slight  evap- 
oration occasioned  by  the  use  is  unavoidable,  and  is  not  esteemed 
by  the  law  a  substantial  injury.  Considering  the  different  uses 
to  which  water  is  applied  in  countries  governed  by  the  common 
law,  it  is  not  so  difficult  to  understand  the  principles  which 
regulate  the  relative  rights  of  the  different  riparian  proprietors. 
As  to  the  preferred  uses,  each  proprietor  had  the  right  to  con- 
sume what  was  necessary,  and  after  doing  this  he  was  bound  to 
let  the  remaining  portion  flow,  without  material  interruption  or 
deterioration,  in  the  natural  chamiel  of  the  stream  to  others  be- 
low him.  If  the  volume  of  water  was  not  sufficient  for  all,  then 
those  highest  up  the  stream  were  supplied  in  preference  to  those 
below.     [The  correctness  of  the  proposition  contained  in  this 

(25) 


§    18  APPROPRIATION    OF  WATERS.  [Ch.  3. 

sentence,  as  a  common-law  rule,  may  be  questioned.]  So  far 
ns  tlic  preferred  uses  were  concerned,  no  one  was  allowed  to  de- 
teriiirate  the  (juality  of  tlie  water;  and,  for  the  purposes  of  a 
motive  power,  tiiere  was  no  use  of  the  element  which  could  im- 
I)air  its  quality.  But  in  our  mineral  region  we  have  a  novel  use 
of  water,  that  cannot  be  classed  with  the  preferred  uses,  but  still 
a  use  which  deteriorates  the  quality  of  the  element  itself,  when 
wanted  a  second  time  for  the  sanje  purposes.  In  cases  hereto- 
fore known,  either  the  element  was  entirely  consumed,  or  else 
its  use  did  not  impair  its  quality  when  wanted  again  for  the 
same  purpose.  This  fact  constitutes  the  great  difficulty  in  this 
and  otiicr  like  cases.  If  the  use  of  water  for  mining  purposes 
did  not  deteriorate  the  quality  of  the  element  itself,  then  the 
only  injury  that  could  be  complained  of  would  be  the  diminu- 
tion in  the  quantity  and  the  interruption  in  the  flow.  In  re- 
peated decisions  of  this  court,  it  has  been  uniformly  held  that 
the  miners  were  in  the  possession  of  the  mineral  lands  under  a 
license  from  both  the  state  and  the  federal  governments.  This 
being  conceded,  the  superior  proprietor  must  have  had  some 
leading  object  in  view  when  granting  this  license;  and  that  ob- 
ject must  have  been  the  working  of  these  mineral  lands  to  the 
best  advantage.  The  intention  was  to  distribute  the  bounty  of 
the  government  among  the  greatest  number  of  persons,  so  as 
most  rapidly  to  develop  the  hidden  resources  of  this  region; 
while  at  the  same  time  the  prior  substantial  rights  of  individu- 
als should  be  preserved.  In  the  working  of  these  mines  water 
is  an  essential  element;  therefore  that  system  which  will  make 
the  most  of  its  use,  without  violating  the  rights  of  individuals, 
will  be  most  in  harmony  with  the  end  contemplated  by  the  su- 
perior proprietor." 

The  conclusion  was  reached  in  this  and  other  cases  that  the 
right  of  the  first  appropriator  of  water  from  a  stream  on  the 
public  domain  is  equally  protected,  so  far  as  the  quantity  is  con- 
(26) 


Ch.  3.]  APPROPEIATION   OF   WATERS.  §   19 

cerned,  from  damage  occasioned  by  subsequent  locators  above 
him,  as  well  as  below  him.  But  as  to  the  deterioration  in  the 
quality  alone  of  the  water,  by  reason  of  its  being  used  by  others 
for  mining  purposes  before  it  reaches  the  ditch  of  the  prior  ap- 
propriator,  this  must  be  deemed  damnum  absque  injuria.  Any 
other  rule,  it  was  said,  would  involve  an  absolute  prohibition 
of  the  use  of  all  the  water  of  a  stream  above  any  prior  approi3ri- 
ator,  in  order  to  preserve  the  quality  of  a  small  portion  taken 
by  him  from  the  stream. 

§  19.     Vie^ws  of  the  United  States  supreme  court. 

It  may  be  instructive  to  compare  these  early  views  of  the 
California  court  with  the  recent  judgments  pronounced  by  the 
supreme  court  of  the  United  States.  In  Atchison  v.  Peterson,^ 
which  came  up  from  Montana,  Mr.  Justice  Field  said;  "By  the 
custom  which  has  obtained  among  miners  in  the  Pacific  states 
and  territories,  where  mining  for  the  precious  metals  is  had  on 
the  public  lands  of  the  United  States,  the  first  appropriator  of 
mines,  whether  in  placers,  veins,  or  lodes,  or  of  waters  in  the 
streams  on  such  lands  for  mining  purposes,  is  held  to  have  a 
better  right  than  others  to  work  the  mines  or  to  use  the  waters. 
The  first  appropriator  who  subjects  the  property  to  use,  or  takes 
the  necessary  steps  for  that  purpose,  is  regarded,  except  as 
against  the  government,  as  the  source  of  title  in  all  controver- 
sies relating  to  the  property.  As  respects  the  use  of  water  for 
mining  purposes,  the  doctrines  of  the  common  law  declaratory 
of  the  rights  of  riparian  owners  were,  at  an  early  day,  after  the 
discovery  of  gold,  found  to  be  inapplicable,  or  applicable  only 
in  a  very  limited  extent,  to  the  necessities  of  the  miners,  and 
inadequate  to  their  protection.  By  the  common  law  the  ripa- 
rian owner  on  a  stream  not  navigable  takes  the  land  to  the  center 

120  Wall.  507,  (1874.) 

(27) 


§    19  APPROPRIATION   OF   WATERS.  [Ch.  3. 

of  the  stream,  nnd  such  owner  lias  the  right  to  the  use  of  the 
water  tlowing  over  the  laud  as  an  incident  to  his  estate."  The 
judf^e  gives  a  summary  of  the  comnion-hiw  doctrines  as  they  are 
stated  in  the  preceding  chapter,  and  then  proceeds  as  follows: 
"This  o<juality  of  right  [at  the  common  law]  among  all  the 
jm'priftors  on  the  same  stream  would  have  been  incompatible 
witli  any  extended  diversion  of  the  water  by  one  proprietor, 
and  its  convenience  for  mining  purposes  to  points  from  which 
it  couUl  not  be  restored  to  the  stream.  But  the  government 
being  the  sole  proprietor  of  all  the  public  lands,  whether  bor- 
dering on  streams  or  otherwise,  there  was  no  occasion  for  the 
application  of  the  common-law  doctrines  of  riparian  proprietor- 
ship with  respect  to  the  waters  of  these  streams.  The  govern- 
ment, by  its  silent  acquiescence,  assented  to  the  general  occupa- 
tion of  the  public  lands  for  mining,  and  to  encourage  their  free 
and  unlimited  use  for  that  purpose,  reserved  such  lands  as  were 
mineral  from  sale  and  the  acquisition  of  title  by  settlement. 
And  he  who  tirst  connects  his  own  labor  with  property  thus  sit- 
uated, and  open  to  general  exploration,  does  in  natural  justice 
acquire  a  better  right  to  its  use  and  enjoyment  than  others  who 
have  not  given  such  labor.  So  the  miners  on  the  public  land 
throughout  the  Pacific  states  and  territories,  by  their  customs, 
usages,  and  regulations,  everywhere  recognized  the  inherent  jus- 
tice of  this  principle;  and  the  principle  itself  was  at  an  early 
period  recognized  by  legislation  and  enforced  by  the  courts  in 
those  states  and  territories."  He  quotes  from  some  of  the  early 
California  decisions  hereinbefore  cited,  and  further  says:  "This 
doctrine  of  right  by  i)rior  appropriation  was  recognized  by  the 
legislation  of  congress  in  186G,  [quoting  the  statute  of  congress.] 
The  right  to  water  by  prior  appropriation,  thus  recognized  and 
established  as  the  law  of  miners  on  the  mineral  lands  of  the 
public  domain,  is  limited  in  every  case,  in  quantity  and  qual- 
ity, by  the  uses  for  which  the  appropriation  is  made."  Hav- 
(28) 


Ch.  3.]  APPROPRIATION    OF   WATERS.  §   19 

ing  thus  explained  the  origin  of  the  doctrine,  the  opinion  goes 
on  to  state  more  particularly  the  extent  and  limits  of  the  right 
thus  acquired,  the  relations  of  the  appropriator  with  other  oc- 
cupants, and  the  like.  This  portion  of  the  opinion  will  be 
quoted  in  connection  with  subsequent  discussions.  In  the  case 
of  Basey  v.  Gallagher,^  the  same  doctrine  was  applied  by  the 
United  States  supreme  court  to  all  other  beneficial  purposes  for 
which  water  is  essential,  as  well  as  to  mining.  Mr.  Justice 
Field,  after  quoting  the  decision  in  Atchison  v.  Peterson,  said: 
"  The  views  there  expressed  and  the  rulings  made  are  equally 
applicable  to  the  use  of  water  on  the  public  lands  for  purposes 
of  irrigation.  No  distinction  is  made  in  the  states  and  terri- 
tories of  the  Pacific  coast  by  the  customs  of  miners  or  settlers, 
or  by  the  couits,  in  the  rights  of  the  first  appropriator  from  the 
use  made  of  the  water,  if  the  use  be  a  beneficial  one."  He 
quotes  an  early  California  decision  to  this  effect,^  and  proceeds: 
"Ever  since  that  decision  it  has  been  held  generally  throughout 
the  Pacific  states  and  territories  that  the  right  to  water  by  prior 
appropriation  for  an\  beneficial  purpose  is  entitled  to  protec- 
tion. Water  is  diverted  to  propel  machinery  in  flour-mills  and 
saw-mills,  and  to  irrigate  land  for  cultivation,  as  well  as  to  en- 
able miners  to  work  their  mining  claims;  and  in  all  such  cases 
the  right  of  the  first  appropriator,  exercised  within  reasonable 
limits,  is  respected  and  enforced.  We  say  within  reasonable 
limits,  for  this  right  to  water,  like  the  right  by  prior  occupancy 
to  mining  or  agricultural  land,  is  not  unrestricted.  It  must  be 
exercised  with  reference  to  the  general  condition  of  the  country 
and  the  necessities  of  the  people,  and  not  so  as  to  deprive  a 
whole  neighborhood  or  community  of  its  use,  and  vest  an  abso- 
lute monopoly  in  a  single  individual.  The  act  of  congress  of 
1866  recognizes  the  right  to  water  by  prior  appropriation  for 

120  Wall.  671,  (1874)         2 Tartar  v.  Spring  V.  M.  Co.,  5  Cal.  397.  (1855.) 

(29) 


§   20  APPROrRIATION    OF    WATERS.  [Ch.   3. 

ngricultural  and  manufacturing  purposes,  as  well  as  for  mining. 
*  *  *  It  is  evident  that  congress  intended,  altliough  the 
languaire  used  is  not  happy,  to  recognize  as  valid  the  customar}'^ 
law  with  rt'Spt'ct  to  the  use  of  water,  which  had  grown  up 
aiimng  the  occupants  of  the  puljlic  land  under  tiie  peculiar  ne- 
cessities of  tlieir  condition;  and  that  law  may  be  shown  by  evi- 
dence of  the  local  customs,  or  h}'  the  legislation  of  the  state  or 
territory,  or  by  the  decisions  of  the  court.  The  union  of  the 
three  conditions,  in  any  particular  case,  is  not  essential  to  the 
l)erfection  of  the  right  by  j^riority;  and,  in  case  of  conflict  be- 
tween a  local  custom  and  a  statutory  regulation,  the  latter,  as 
of  superior  authority,  must  necessarily  control." 

These  extracts  have  been  given  for  a  definite  purpose,  and 
they  have  a  most  important  bearing  upon  the  future  discussion 
of  other  questions. 

§  20.     Grounds  of  these  decisions. 

It  is  essential,  to  any  accuracy  in  such  discussions,  that  we 
should  ascertain  at  the  outset  the  exact  grounds  of  tlie  peculiar 
doctrine  which  lies  at  the  foundation  of  the  entire  law  concern- 
ing water-rights  in  the  Pacific  communities.  The  question  will 
afterwards  rise  whether  this  doctrine  determines  all  the  special 
rules  which  may  apply  to  all  circumstances  and  to  all  conditions 
of  ownership;  or  whether,  on  the  other  hand,  this  doctrine  only 
partially  displaces  the  common  law,  leaving  it  applicable  un- 
der ditl'erent  circumstances  and  conditions.  It  is  plain,  upon 
the  most  superficial  examination,  that  the  opinions  which  have 
been  quoted — and  the  same  is  true  of  other  cases — do  not  pro- 
fess to  derive  their  conclusions  from  the  common  law.  On  the 
contrary,  they  openly  avow  that  these  conclusions  are  directly 
opposed  to  the  common  law.  They  base  their  reasoning  and 
its  results  upon  the  peculiar  social  and  industrial  needs  of  the 
early  .settlers,  especially  the  miners;  upon  the  condition  of  the 
(30; 


Ch.  3.]  APPROPRIATION   OF    WATERS.  §   21 

public  domain  in  which  the  mining  was  carried  on;  upon  the 
evident  intention  of  the  federal  government  in  throwing  open 
the  mineral  wealth  of  the  public  lands  to  all  comers,  so  that  its 
advantages  might  be  enjoyed  equally  by  all  persons;  and  upon 
the  fact  that  the  conmion-law  rules  would  defeat  this  intention, 
and  retard,  if  not  wholly  destroy,  the  development  of  the 
mineral  resources.  Although  this  departure  from  the  common 
law  was,  at  the  very  first,  made  with  reference  solely  to  the  use 
of  water  for  mining,  it  was  soon  necessarily  eiitended  to  all 
•other  beneficial  uses.  There  are  undoubtedly  some  dicta  to  be 
found  in  a  few  of  the  California  cases  which  seem  to  assume  or  to 
suppose  that  the  conclusions  reached  by  the  court  were  in  agree- 
ment with  the  common-law  doctrines.  These  dicta  differ  widely 
from  the  general  course  of  reasoning  pursued  by  the  state  judges, 
and  especially  from  that  adopted  by  the  United  States  supreme 
<30urt;  and  they  are,  as  it  seems  to  me,  utterly  irreconcilable 
with  man}"-  subsequent  decisions,  establishing  more  special 
rules,  made  by  the  state  and  the  federal  courts. 

§  21.     Doctrine   of  appropriation    unkno"wn    to   tlie 
common  la'w. 

It  has  been  urged,  although  the  position  has  never,  I  believe, 
been  sustained  by  any  authoritative  decision  in  the  Pacific  states 
or  territories,  that  the  common  law,  in  its  early  and  original 
form,  recognized  and  permitted  a  prior  appropriation  of  the 
waters  of  running  streams;  that  the  contrary  rules,  as  laid  down 
by  Story  and  Kent,  and  as  they  are  briefly  formulated  in  our 
second  chapter,  are  a  modern  departure  from  the  primitive  com- 
mon law,  first  made  by  some  comparatively  recent  English  de- 
cisions; and  that,  as  a  necessary  consequence,  these  original 
common-law  doctrines,  denying  what  are  ordinarily  called  "ri- 
parian rights,"  and  not  the  modern  innovations  acknowledging 
such  rights,  are  binding  upon  and  should  be  followed  by  the 

(31) 


§    1>2  ArrROPRIATION   OF   WATERS.  [Ch.  3» 

courts  of  the  Tncific  com iiion wealths.  In  alleged  support  of  thi» 
view,  reference  has  been  made,  among  others,  to  some  New 
York  decisions.'  Into  the  discussion  of  this  question  I  shall 
not  at  present  enter.  In  the  very  recent  case  decided  by  the 
New  York  court  of  appeals,^  described  in  our  second  chapter, 
the  same  position  was  urged  by  counsel.  As  a  consequence,  the 
common-law  doctrine  was  examined  by  tlie  court  with  much 
learning  and  ability,  the  early  authorities  were  copiously  cited, 
and  tlie  conclusions  reached  were  in  complete  accordance  with 
the  common-law  rules  as  they  are  universally  understood  at  the 
present  time  by  the  courts  of  England  and  of  the  United  States. 
The  cases  of  People  v.  Canal  Appraisers,  and  others  like  it, 
which  seem  to  be  antagonistic,  it  is  shown  are  confined  to  the 
Mohawk  and  the  Hudson  rivers,  the  rights  of  riparian  owners  on 
these  two  streams  being  derived,  not  from  the  common  law,  but 
from  the  civil  law,  as  it  prevailed  in  the  Netherlands  during  the 
colonial  periods. 

§  22.     Basis  of  right  to  appropriate  ivater. 

[Prior  to  the  act  of  congress  already  referred  to,  there  was  no- 
legislation  emanating  from  the  federal  government  which  di- 
rectly authorized  the  exclusive  appropriation  of  water-courses  oq 
the  public  domain.  The  right  of  a  miner  to  go  upon  the  pub- 
lic lands  of  the  United  States,  and  there  appropriate  to  his  own. 
use  the  water  of  a  running  stream,  and  to  hold  the  same  against 
any  person  who  should  subsequently  attempt  to  divert  it  from 
him,  could  be  based  upon  no  grant,  statute,  or  express  permis- 
sion.    Tliis  right,  if  it  was  to  receive  legal  recognition  at  all,. 

1  For  example,  to  People  V.  Canal  marked:  "In  examining  the  nu- 

Appraisers,  .33  N.  Y.  461.  merous  cases  which  establish  that 

2 Smith  V.  City  of  Rochester,  92  the  doctrine   of  appropriation  is- 

N.  Y.  463.     In  the  case  of  Lux  v.  not  the   doctrine  of  the  common 

Uaggiu.  (Cal.)  lOPac.  Rep.  7")3,  the  law,  we  meet  an   embarrassment 

supreme    court  of  California   re-  of  abundance. " 
(32) 


Ch.  3.]  APPROPRIATION    OF    WATERS.  §   23 

must  be  made  to  rest  upon  some  other  foundation  than  that  of 
positive  law.  Hence  the  courts — in  order  to  protect  the  vast 
interests  which  had  grown  up  under  the  mining  systems,  and 
to  give  legal  sanction  to  the  rights  thus  acquired — invoked  the 
common-law  doctrine  of  presumption,  and  implied,  from  all  the 
circumstances,  a  license  from  the  United  States  to  the  appropri- 
ator  of  water,  commensurate  with  an}^  rights  which  he  could 
justly  claim.  Thus  it  is  said:  "From  a  very  early  day  the 
courts  of  this  state  have  considered  the  United  States  govern- 
ment as  the  owner  of  running  waters  on  the  public  lands  of  the 
United  States,  and  of  their  beds.  Recognizing  the  United  States 
as  the  owner  of  the  lands  and  waters,  and  as  therefore  author- 
ized to  permit  the  occupation  or  diversion  of  the  waters  as  dis- 
tinct from  the  lands,  the  state  courts  have  treated  the  prior  ap- 
propriator  of  water  on  the  public  lands  of  the  United  States  as 
having  a  better  right  than  a  subsequent  appropriator,  on  the 
theory  that  the  appropriation  was  allowed  or  licensed  by  the 
United  States."^ 

§  23.     Grounds  for  presumption  of  license. 

If  we  inquire  as  to  the  grounds  on  which  this  presumption 
of  a  license  from  the  government  is  built,  we  shall  find  the 
question  satisfactorily  answered  in  an  early  decision  of  the  Cal- 
ifornia supreme  court.  It  was  observed  by  a  learned  judge: 
"One  of  the  favorite  and  much-indulged  doctrines  of  the  com- 
mon law  is  the  doctrine  of  presumption.  Thus,  for  the  purpose 
of  settling  men's  diflferences,  a  presumption  is  often  indulged 
where  the  fact  presumed  cannot  have  existed.  In  support  of 
this  proposition  I  will  refer  to  a  few  eminent  authorities. 
*  *  *  In  these  cases  presumptions  were  indulged  against 
the  truth, — presumptions  of  acts  of  parliament  and  grants  from 

iLux  V.  Haggin,  (Cal.)  10  Pac.  Rep.  721. 
POM. RIP. — 3  (33) 


§    23  APrROPRIATION   OF    WATERS.  [Cli.  3. 

the  crown.     It  is  true  tlie  basis  of  the  presumption  was  length 
of  time,  but  the  reason  of  it  was  to  settle  disputes,  and  to  quiet 
the  possession.     If,  then,  lapse  of  time  requires  a  court  to  raise 
presumptions,  other  circumstances  which  are  equally  potent  and 
pei-suasive  nmst  have  the  like  effect  for  the  purposes  of  the 
desired  end;  for  lapse  of  time  iS  but  a  circumstance  or  fact 
which  calls  out  the  principle,  and  is  not  the  principle  itself. 
Every  judge  is  bound  to  know  the  history,  and  the  leading 
traits  wliich  enter  into  the  history,  of  the  country  where  he  pre- 
sides.    This  we  have  held  before,  and  it  is  also  an  admitted 
doctrine  of  the  common  law.     We  must  therefore  know  that 
this  state  has  a  large  territory;  that  upon  its  acquisition  by  the 
United  States,  from  the  sparseness  of  its  population,  but  a  small 
comparative  proportion  of  its  land  had  been  granted  to  private 
individuals;  that  the  great  bulk  of  it  was  laud  of  the  govern- 
ment; that  but  little  as  yet  has  been  acquired  by  individuals 
by  purchase;  that  our  citizens  have  gone  upon  the  public  lands 
continuously  from  a  period  anterior  to  the  organization  of  the 
state  government  to  the  present  time.     Upon  these  lands  they 
have  dug  for  gold;  excavated  mineral  rock;  constructed  ditches, 
Humes,  and  canals  for  conducting  water;  built  mills  for  sawing 
lumber  and  grinding  corn;  established  farms  for  cultivating  the 
earth;  made  settlements  for  the  grazing  of  cattle;  laid  off  towns 
and  villages;  felled  trees;  diverted  water-courses;  and,  indeed, 
have  done,  in  the  various  enterprises  of  life,  all  that  is  useful 
and  necessary  in  the  high  condition  of  civilized  development. 
All  of  these  are  open  and  notorious  facts,  charging  with  notice 
of  them  not  only  the  courts  who  have  to  apply  the  law  in  refer- 
ence to  them,  but  also  the  government  of  the  United  States, 
which  claims  to  be  the  proprietor  of  these  lands,  and  the  gov- 
ernment of  the  state  within  whose  sovereign  jurisdiction  they 
exist.     In  the  face  of  these  notorious  facts  the  government  of 
the  United  States  has  not  attempted  to  assert  any  right  of  own- 
(34) 


Ch.  3.]  APPROPRIATION    OF   WATERS.  §   24 

ership  to  any  of  the  large  body  of  lands  within  the  mineral  re- 
gion of  the  state.  The  state  government  has  not  only  looked  on 
quiescently  upon  this  universal  appropriation  of  the  public  do- 
main for  all  of  these  purposes,  hut  has  studiously  encouraged 
them,  in  some  instances,  and  recognized  them  in  all.  Now, 
can  it  be  said,  with  any  propriety  of  reason  or  common  sense, 
that  the  parties  to  these  acts  have  acquired  no  rights  ?  If  they 
have  acquired  rights,  these  rights  rest  ujjon  the  presumption  of 
a  grant  of  right,  arising  either  from  the  tacit  assent  of  the  sov- 
ereign, or  from  expressions  of  her  will  in  the  course  of  her  gen- 
eral legislation,  and,  indeed,  from  both.  Possession  gives  title 
only  by  presumption.  Then,  when  the  possession  is  shown  to 
be  of  public  land,  why  may  not  any  one  oust  the  possessor? 
Why  can  the  latter  protect  his  possession  ?  Only  upon  the  doc- 
trine of  presumjjtion,  for  a  license  to  occupy  from  the  owner 
will  be  presumed."^ 

At  the  same  time  it  must  be  remembered  that  there  was  never 
any  license,  in  fad,  from  the  government  to  the  miners  on  the 
Pacific  coast  to  work  the  mines.  Congress  had  adopted  no  spe- 
cific action  on  the  subject.  The  supposed  license  consisted  in 
the  forbearance  of  the  government;  any  other  license  would  rest 
in  mere  assertion,  and  would  be  untrue  in  fact  and  unwarranted 
in  law.^ 

§  24.     Ef&cacy  of  miners'  customs. 

It  may  not  be  inappropriate  to  add  a  few  words  to  the  ac- 
count given  by  our  author  of  the  origin  and  nature  of  "mining 
customs."^  It  is  said  by  the  court  in  California:  "It  has  always 
been  held  that  local  regulations,  etc.,  accepted  by  the  miners  of 
a  particular  district,  are  binding  only  as  to  possessory  rights 

1  Conger  v.  Weaver,  6  Cal.  556,  ^Boggs  v.  Merced  Min.  Co.,  14 
557.  Cal.  355. 

8  Supra,  §  14. 

(35) 


§    24  APPROPRIATION    OF    WATERS.  [Ch.  3. 

witliin  the  district,  and  that  they  must  be  proved  as  a  fact. 
When  they  have  been  proved,  the  courts  have  considered  them 
only  for  the  purpose  of  ascertaining  the  extent  and  boundaries 
of  the  alle-^od  possessions  of  the  respective  parties,  and  the  pri- 
ority of  possessory  ri};ht  as  between  them,  or  for  the  purpose  of 
ascertaining  whether  the  right  of  action  has  been  lost  or  aban- 
doned by  failure  to  work  and  occupy  in  the  manner  prescribed. 
When  the  priority,  limits,  and  continuation  of  a  possession  have 
thus  been  ascertained,  the  courts  have  proceeded  to  apply  the 
presumption  of  a  grant  from  the  paramount  source, — a  presump- 
tion, we  repeat,  sustainable  on  common-law  principles."^  The 
principal  efficacy  of  the  mining  customs,  then,  is  this:  that, 
wliere  any  local  mining  custom  exists,  controversies  affecting  a 
mining  right  must  be  solved  and  determined  by  the  rules  and 
usages  of  the  bar  or  diggings  embracing  the  claim  to  which  such 
right  is  asserted  or  denied,  whether  such  customs  or  usages  are 
written  or  unwritten.  Legislation,  it  is  added,  could  not  en- 
tirely supplant  the  force  of  these  customs.  They  are  of  a  differ- 
ent character  from  common-law  customs;  for  the  latter  must  be 
of  innnemorial  tradition.^  But  a  custom  or  usage  is  void  when- 
ever it  falls  into  disuse,  or  is  generally  disregarded.'  The  ex- 
istence of  mining  rules  and  customs  is  a  question  of  fact;  and  it 
is  further  required  that  they  should  be  reasonable.* 

It  remains  to  be  added  that  the  mining  customs  are  recognized 
as  valid  and  binding  only  when  they  are  not  in  conflict  with 
any  constitutional  or  statutory  provision,  either  of  the  state  or 
the  United  States.*  Thus,  no  custom  of  miners  could  legalize 
those  effects  of  the  system  of  hydraulic  mining  which  have  come 

>Lux  V,  Haggin,  (Cal.)  10  Pac.  And  see  Irwin  v.  Phillips,  5  Cal. 

Rep.  748.  140,  s.  c  63  Amer.  Dec.  113. 

2  Morton  v.  Solambo  Copper  M.  ^Code  Civil  Proc.  Cal.  §  748,  and 

Co..  26  Cal.  527.  St.  1851,  p.  149,  5^  621.     See,  also, 

'Harvey  v.  Ryan,  42  Cal.  626.  Rev  St.  U.  S.  §§2319,  2324. 

<King  V.  Edwards,  1  Mont.  235. 

(36) 


Ch.  3.]  APPROPRIATION   OF  WATERS.  §   25 

to  be  regarded  by  the  courts  as  a  public  nuisance.  On  this  point 
it  is  said:  "A  custom  or  usage  attempted  to  be  established, 
whereby  mining  debris  might  be  sent  down  to  the  valleys,  dev- 
astating the  lands  of  private  owners,  holding  titles  in  fee  from 
the  Mexican  government,  as  old  as  the  title  of  the  United  States, 
without  first  acquiring  the  right  to  do  so  by  purchase  or  other 
lawful  means,  upon  compensation  paid,  would  be  in  direct  vio- 
lation both  of  the  laws  and  constitution  of  the  state  and  of  the 
•constitution  of  the  United  States.  Instead  of  being  authorized 
by  the  statute,  it  would  be  in  direct  violation  of  the  statute.  It 
would  also  be  in  direct  violation  of  the  express  provisions  of  the 
statutes  defining  nuisances."'] 

II.     Appropriation  as  against  the  Subsequent  Grantee  of 
THE  Government. 

§  26.     Title    of   subsequent    grantee    is    subject   to 
prior  appropriation. 

Where  a  stream  or  lake  was  throughout  its  entire  extent  on 
the  public  land,  the  prior  appropriator  obtained  a  right,  we 
have  seen,  good  against  all  the  world  except  the  federal  gov- 
•ernment.  The  government  might  have  denied  this  right  and 
treated  it  as  non-existing.  On  the  contrary,  congress  formally 
a,cknowledged  it,  and  by  the  declaratory  statute  of  1866  made 
the  national  ownership  of  the  public  domain  bordering  on  the 
stream  or  lake  subject  to  the  claims  and  uses  of  the  prior  ap- 
propriator. Wherever  the  title  of  the  United  States  to  any  por- 
tion of  the  public  domain  was  thus  burdened,  the  same  burden 
would,  on  general  principles,  accompany  the  title  if  transferred 
to  any  subsequent  or  private  owner;  whoever  succeeded  to  the 
title  of  the  United  States,  through  any  mode  of  acquisition  or 

^Woodruff  V.  North  Bloomfield  G.  M.  Co.,  9  Sawy.  441,  s.  c.  18  Fed. 
Kep.  801. 

(37) 


§  26  ArriionuATioN  of  waters.  [Ch.  3. 

conveyance,  would  acquire  and  hold  it  subject  to  the  same  serv- 
itude which  before  existed  in  favor  of  tiie  prior  appropriator. 
This  consequence  would  naturally  follow  from  the  operation  of 
well-settK'd  principles,  independently  of  any  express  enactment; 
but  it  has  not  been  thus  left  as  a  matter  of  inference.  By  an 
act  of  July  9,  1870,  amending  the  statute  of  1866,  congress  has 
provided  "that  all  patents  granted,  or  pre-emptions  or  home- 
steads allowed,  shall  be  subject  to  any  vested  and  accrued  water- 
rights,  or  rights  to  ditches  and  reservoirs  used  in  connection 
witii  such  water-rights,  as  may  have  been  acquired  under  or 
recognized  by  the  ninth  section  of  the  act  of  which  this  is 
amendatory;"  i.  e.,  act  of  July  26,  1866. 

§  26.     California  decisions  on  this  point. 

In  the  recent  case  of  Osgood  v.  El  Dorado  Water  Co.,'  it  ap- 
peared that  the  plaintiff,  Osgood,  tirstwent  upon  a  certain  tract 
of  i)ublic  land  bordering  on  a  stream,  in  1863,  and  had  resided 
there  ever  since.  The  land  at  the  time  was  unsurveyed.  The 
land  was  surveyed  by  the  government  surveyor  in  1865.  The 
plaintiff  filed  his  declaratory  statement  as  a  pre-emptor  in  June, 
1868;  in  June,  1870,  he  had  completed  his  payments;  and  on 
October  25, 1871,  he  received  his  patent  from  the  United  States. 
In  March,  1867,  the  predecessors  of  the  defendant  had  posted 
a  notice  of  their  appropriation  of  the  waters  of  the  same  stream 
which  ran  through  the  plaintiff's  tract.  From  that  date  they 
had  been  engaged  in  constructing  a  ditch  or  canal,  and  were  in 
active  prosecution  of  the  work  at  the  time  plaintiff  obtained  his 
patent,  although  they  did  not  finally  complete  it  until  sometime 
after  that  date.  The  action  was  brought  to  restrain  the  defendant 
from  diverting  the  water,  based  upon  the  plaintiff's  asserted  rights 
as  a  riparian  owner.     The  court  held  that  the  plaintiff's  rights 

156  Cal.  571,(1880.) 
(38) 


Ch.  3.]  APPROPRIATION    OF    WATERS.  §    26 

accrued  only  from  the  date  of  his  patent,  and  did  not  relate  back 
to  the  time  of  his  first  settlement,  or  of  his  filing  a  declaration  of 
pre-emption.^  The  defendant  was  thus  in  the  position  of  a  prior 
appropriator.  In  determining  the  rights  of  such  an  appropriator 
against  a  subsequent  grantee  from  the  United  States,  the  court 
entered  into  no  discussion  of  the  question  upon  principle.  It 
rested  the  decision  wholly  upon  the  statute  of  congress.  Mr. 
Justice  Ross  said:  "The  principle  of  prior  appropriation  of 
water  on  the  public  lands  in  California,  where  its  artificial  use 
for  agricultural,  mining,  and  other  like  purposes  is  absolutely 
essential,  which  has  all  along  been  recognized  and  sanctioned 
by  the  local  customs,  laws,  and  decisions,  was  thus  expressly 
recognized  and  sanctioned  by  the  supreme  court  of  the  United 
States,  and  also  by  the  act  of  congress  of  1866."  The  same 
policy,  he  continues,  led  to  the  further  act  of  1870,  previously 
quoted.  "The  defendant's  grantors,  therefore,  had  the  right  to 
appropriate  the  water  in  controvers}',  and,  if  they  acquired  a 
vested  right  therein  prior  to  the  issuance  of  the  plaintiff's  pat- 
ent, the  plaintiff's  rights,  by  express  statutory  enactment,  are 
subject  to  the  rights  of  the  defendant."^ 

^In  support  of  this  conclusion  July  26,  1866,  or  under  the  provis- 

the    following  cases  were    cited:  ions  of  title  8  of  the  Civil  Code  of 

Megerle  v.  Ashe,  33  Cal.  74;  Dan-  this    state,   takes   subject   to   the 

iels  V.  Lansdale,  43  Cal.  41;  Smith  rights  acquired  by  such  prior  ap- 

V.  Athern,  34  Cal.  507;  Lansdale  v.  propriator. "    Lux  v.  Haggin.  (Cal.) 

Daniels,  100  U.  S.  118.  4  Pac.  Rep.  924.     See,  also.  Barnes 

2  [This  doctrine  is  now  conclu-  v.  Sabron,  lONev.  217;  Lytle  Creek 

sively  established  upon  the  author-  Water  Co.  v.  Perdew,  (Cal.)  2  Pac. 

ities.     In    a  later  case  the    same  Rep.  733;  .Judkins  v.  Elliott,  (Cal.) 

court  said:   "Whoever    purchases  12  Pac.  Rep.  116.     When  one  ob- 

land  from  the  United  States  or  this  tains  government  land,  he   has  a 

state  after  the  whole  or  some  part  right  to  appropriate,  for  the  pur- 

of  the  water  of  a  natural  water-  pose  of  irrigation  and  stock-rais- 

course  running  through  such  land  ing,  the  waters  of  any  stream  tlow- 

has  been  appropriated  by  some  one  ing    through    government    land, 

else  under  the  act  of  congress  of  which  have  not  been   previously 

(39) 


§    27  APPROPRIATION    OF    WATERS.  [Ch.  3. 

§  27.     Views  of  United  States  supreme  court. 

In  the  case  of  Broder  v.  Natouia  Water  Co./  the  supreme 
court  seems  to  have  held,  or  at  least  to  have  intimated  by  the 
course  of  its  reasoning,  that  the  subsequent  grantee  from  the 
government  would  take  subject  to  the  rights  of  the  prior  appro- 
priator,  even  in  the  absence  of  the  express  declaration  contained 
in  the  act  of  1870.  A  person  had  made  a  prior  appropriation 
from  the  water  of  a  stream  running  through  a  portion  of  the 
public  domain  included  in  a  tract  of  the  public  land,  which 
was  afterwards,  and  before  the  statute  of  1870,  granted  by  con- 
gress to  a  railroad  company.  As  between  this  appropriator  and 
a  subsequent  purchaser  from  the  railroad  company  of  another 
parcel  on  the  same  stream,  it  was  held  that  such  purchaser  took 
his  title  subject  to  the  prior  appropriation,  because  the  congres- 
sional grant  to  the  railroad  company  was  expressly  declared  to 
be  subject  to  all  "lawful  claims."  Although  this  provision  in 
the  grant  to  the  railroad  was  similar  in  its  import  to  the  more 
compreb.ensive  statute  of  1870,  yet  the  reasoning  of  the  court 
is  largely  based  upon  the  rights  of  the  appropriator  of  water  ac- 
quired through  the  operation  of  local  customs,  and  recognized 
and  protected  by  the  earlier  legislation  of  1866.  The  established 
doctrine  of  the  court  was  said  to  be  that  the  "rights  of  miners 
who  had  taken  possession  of  mines,  and  worked  and  developed 
them,  and  the  rights  of  persons  who  had  constructed  canals  and 

appropriated  by  another,  and  in  the  appropriation  and  use  of  the 
waters  thus  converted  to  his  use  water,  acquires,  as  against  a  sub- 
he  acquires  a  vested  right  which  sequent  purchaser  from  the  United 
cannot  be  affected  bj'  those  who  States  as  complete  and  perfect  a 
purchase    above    or    below    him.  right    to    maintain    his    ditch    as 
Kaler  v.   Campbell,    13    Or.    596,  though  such  easement  had  vested 
B.  c.  11  Pac.  Rep.  301.     And  where  in  him  by  grant.     Ware  v.  Walker, 
an  appropriator  of  water  leads  his  (Cal.)  12  Pac.  Rep.  475.] 
ditch  through  the  public  lands,  he,  ilOl  U.  S.  274, 
by  the  construction  of  his  ditch  and 
(40) 


€h.  3.]  APPROPRIATION    OF    WATERS.  §    28 

ditches  to  be  used  in  mining  operations  and  for  purposes  of  ag- 
ricultural irrigation,  in  the  region  where  such  artificial  use  of 
water  was  an  absolute  necessity,  are  rights  which  the  government 
had,  by  its  conduct,  recognized  and  encouraged,  and  was  bound 
to  protect,  before  the  passage  of  the  act  of  1866." 

§  28.     The  act  of  1870  is  declaratory  only. 

Where  a  private  person  can  thus  acquire  a  right  of  property 
in  the  water  of  a  public  stream,  or,  if  not  an  absolute  right  of 
•property,  at  least  a  right  in  the  nature  of  an  easement  or  servi- 
tude to  use  the  water,  which  is  good  against  the  United  States, 
as  proprietor  of  the  remaining  tract  of  land  through  which  the 
stream  flows,  it  would  seem  to  follow,  as  a  necessary  result  of 
the  common-law  doctrines  concerning  the  devolution  of  title, 
that  the  same  right  would  remain  good  and  attached  to  the 
stream,  as  against  any  and  all  subsequent  proprietors  who  may 
acquire  title  from  and  under  the  governnient  to  all  or  to  any 
part  of  the  public  lands  bordering  upon,  adjacent  to,  or  situ- 
ated near  the  same  stream.  In  other  words,  it  would  seem  that 
the  statute  of  1870  should  be  construed  as  simply  declaratory 
of  a  familiar  legal  doctrine,  and  not  as  circumscribing  or  re- 
stricting such  doctrine.  If  the  language  of  such  statute  be  found 
to  be  too  narrow  or  incomplete  to  afford,  of  itself,  a  sufficient 
protection  to  the  claims  of  prior  appropriators  against  subse- 
quent owners,  then  the  courts  may  fall  back,  if  necessary,  upon 
the  broader  principles  of  the  common  law.  In  this  connection, 
it  will  be  important  to  determine  who  are  grantees  or  owners  ac- 
quiring title  from  and  under  the  United  States.  While  the  stat- 
ute should  be  liberally  construed  in  favor  of  the  prior  appropri- 
ators, it  should  also  be  fairly  and  equitably  interpreted  in  as- 
certaining who  are  the  grantees  and  owners  holding  title  to  the 
public  domain  under  the  government.     The  discussion  of  this 

(41) 


§  ii9 


APPROrKIATION   OF  WATERS. 


[Ch.  3. 


.luc^^tiun  belongs,  huwever,  to  a  subsequent  portion  of  our  es- 


.say." 

§  29.     Public  lands  of  the  state. 

Tho  rules  tiius  far  considered  are  avowedly  confined  in  their 
operation  to  the  public  lands  of  the  United  States.  The  first 
contemplates  an  appropriation  from  the  water  of  a  stream  or  lake 
while  it  lies  wholly  in  the  public  domain,  before  any  titles  of 
tracts  adjacent  to  it  have  been  acquired  by  other  persons.  The, 
second  renders  a  prior  appropriation,  thus  made,  valid  and  ef- 
fectual as  against  private  persons  who  subsequently  acquire, 
from  the  general  government,  titles  to  portions  of  the  public 
land  bordering  on  the  same  lake  orstreain.  The  question  is  at 
once  presented  whether  the  same  rules  apply  to  the  public  lands 
of  the  state,  as  well  as  to  those  of  the  United  States.  The  United 
States  has,  through  congressional  legislation,  donated  to  indi- 
vidual states — to  California,  for  example — large  tracts  of  the  orig- 
inal public  domain,  under  the  name  of  "tide- water,"  "swamp," 
and  "overflowed"  lands.     Over  such  lands   the  state  has,  of 


1  [At  the  same  time  it  must  be  re- 
membered that  a  grant  of  public 
land  of  the  United  States  carries 
with  it  the  common -law  rights  to 
an  innavigable  stream  thereon, 
unless  the  waters  are  expressly  or 
impliedly  reserved  by  the  terms  of 
the  patent,  or  of  the  statute  grant- 
ing the  land,  or  unless  they  are  re- 
served by  the  congressional  legis- 
lation authorizing  the  patent  or 
other  muniment  of  title.  To  this 
point  the  supreme  court  of  Cali- 
fornia speaks  as  follows:  "And  if 
the  United  States  since  the  date  of 
the  admission  of  the  state  has  been 
the  owner  of  the  innavitrable 
streams  on   its  lands,  and  of  the 

(42) 


subjacent  soils,  grants  of  its  lands 
must  be  held  to  carry  with  them 
the  appropriate  common-law  use 
of  the  waters  of  the  innavigable 
streams  thereon,  except  where  the 
flowing  waters  have  been  reserved 
from  the  grant.  To  hold  other- 
wise would  be  to  hold,  not  only 
that  the  lands  of  the  United  States 
are  not  taxable,  and  that  the  pri- 
mary disposal  of  them  is  beyond 
state  interference,  but  that  the 
United  States,  as  a  riparian  owner 
within  the  state,  has  other  and  dif- 
ferent rights  than  other  riparian 
owners,  including  its  own  grant- 
ees." Luxv.  Haggin,(Cal.)10Pac. 
Rep.  723.J 


Ch.   3.]  APPROPRIATION    OF   WATERS.  §    29 

course,  both  the  proprietary  rights  of  iin  owner,  and  the  govern- 
mental rights  of  a  political  sovereign;  while  over  its  public  lands 
within  the  territory  of  a  state  the  United  States  has  only  the 
rights  of  a  proprietor.  If  a  stream  was  wholly  situated  on  such 
public  lands  of  California,  and  an  appropriation  should  be  made 
of  its  waters  for  irrigating,  agricultural,  or  manufacturing  pur- 
poses, before  any  other  private  persons  had  acquired  title  to 
tracts  bordering  upon  its  banks,  would  this  prior  appropriation 
be  valid  against  the  state,  and  also  against  otlier  riparian  pro- 
prietors holding  titles  subsequently  obtained  from  the  state? 
This  is  an  important  question,  but  its  discussion  will  be  more 
appropriate  in  connection  with  subsequent  topics.  It  is  enough 
now  to  say  that  the  considerations  which  led  to  the  adoption  of 
the  rules  previously  laid  down  concerning  the  public  lands  of  the 
United  States  would  seem  to  apply,  with  at  least  an  equal  force, 
to  the  lands  owned  by  the  state.  The  federal  government, 
through  its  congress  and  its  courts,  has  avowedly  carried  out  a 
policy  which  was  inaugurated  by  the  legislative  and  judicial  de- 
cisions of  the  state.  As  the  doctrine  of  prior  appropriation  on 
the  public  lands  of  the  United  States  originated  from  a  policy 
recognized,  favored,  and  promoted  by  state  authority,  and  as 
similar  needs  exist  and  similar  reasons  apjjly  in  connection  with 
the  public  lands  of  the  state,  it  seems  to  be  a  natural,  even  if 
not  an  inevitable,  consequence,  that  the  same  doctrine  should 
be  extended  to  those  lands,  as  against  the  state  itself  and  its 
subsequent  grantees.^ 

^[The  position  taken  in  tlie  text  always  recognized  a  right  in  the 

is  strongly  supported  by  a  very  im-  prior  possessor  of  lands  of  the  state 

portant  decision  lately  rendered  by  as  against  those  subsequently"  in- 

the  supreme  court  of  California,  truding  upon  such  possession.  The 

In  Lux  V.  Haggin,  (Cal.)  10  Pac.  same    principle    would    protect  a 

Rep.  775,  it  is  said:  "The  citizens  of  prior  appropriator  of  water  against 

the  state  have  never  been  prohib-  a  subsequent  appropriator    from 

ited  from  entering  upon  the  public  the  same  stream.     It  is  not  impor- 

landsof  the  state.  The  courts  have  tant  here  to  inquire  whether,  as 

(43) 


§   31  APPROPRIATION    OF    WATERS.  [Ch.  3. 


III.     The  Right  Restricted  to  the  Public  Domain. 

§  30.     Appropriation  confined  to  public  lands. 

Wluitever  rules  may  be  adopted  by  the  statutes  or  the  decis- 
ions of  a  particular  state,  with  reference  to  the  rights  of  riparian 
proprietors  who  have  acquired  titles  to  all  the  lands  on  the  bor- 
ders of  a  stream,  before  any  appropriation  of  its  waters  had  been 
made  while  these  were  lands  public^, — even  though  the  state 
might  by  its  statutes  or  decisions  expressly  extend  the  same  doc- 
trines to  all  such  proprietors, — still  the  two  doctrines,  hereto- 
fore described  as  originating  from  the  local  customs  of  miners 
and  sanctioned  by  the  legislation  of  the  state  and  of  congress,  are 
confined  in  their  operation  to  the  public  domain  of  the  United 
States.  All  extension  of  these  doctrines  to  other  lands  and  otlier 
proprietors,  and  all  additional  rules,  must  necessarily  proceed 
from  the  states  themselves. 

§  31.     Jurisdiction   of  state  and  United  States  dis- 
tinguished. 

It  should  be  observed,  in  this  connection,  that  the  United 
States  government  has  no  power  whatever  to  prescribe  for  its 

against  a  subsequent  appropria-  tenance  of  peace  and  good  order, 
tiou  of  water,  a  prior  appropriator  has  protected  the  citizen  in  the  ac- 
of  land,  through  which  the  stream  quisition  and  enjoyment  on  ita 
may  run,  would  have  the  better  lands  of  certain  property  rights 
right.  It  is  enough  to  say  that,  as  obtained  through  possession, — 
between  two  persons,  both  mere  perhaps  the  mode  by  which  all 
occupants  of  land  or  water  on  the  property  was  originally  acquired, 
state  lands,  the  courts  have  deter-  In  view  of  these  facts,  we  feel  jus- 
mined  controversies.  The  implied  tified  in  saying  that  it  was  the  leg- 
permission  by  the  general  govern-  islative  intent  to  exclude  as  well 
ment  to  private  persons  to  enter  the  state  as  the  United  States  from 
upon  its  lands  has  been  assumed  the  protection  which  is  extended 
to  have  been  given  b}'  the  state  to  riparian  proprietors  by  section 
with  reference  to  the  lands  of  the  1422  of  the  Civil  Code.  "J 
slate:  and  the  state,  for  the  main- 

(44) 


Ch.   3.]  APPROPRIATION   OF    WATERS.  §  31 

grantees  any  general  rules  of  law  concerning  the  useof  their  lands, 
or  of  the  lakes  and  streams  to  which  they  are  adjacent,  binding 
upon  its  grantees  of  portions  of  the  public  domain  situated 
within  a  state,  and  becoming  operative  after  they  have  acquired 
their  titles  from  the  federal  government.  The  power  to  prescribe 
such  rules,  forming  a  part  of  the  law  concerning  real  property, 
belongs  exclusively  to  the  jurisdiction  of  the  slates.  Over  its 
public  lands  situate  within  a  state,  the  United  States  has  only 
the  rights  of  a  proprietor,  and  not  the  legislative  and  govern- 
mental rights  of  a  political  sovereign.  Even  with  respect  to  the 
navigable  streams  within  a  state,  the  powers  of  the  federal  gov- 
ernment are  limited,  and  a  fortiori  that  is  so  with  respect  to 
streams  which  are  innavigable.  In  the  great  case  of  Pollard's 
Lessee  v.  Hagan,^  the  authority  of  the  United  States  over  its 
public  lands  within  a  state  was  thus  defined  by  the  supreme 
court:  "When  Alabama  was  admitted  into  the  Union,  she  suc- 
ceeded to  all  the  rights  of  sovereignty,  jurisdiction,  and  eminent 
domain  which  Georgia  possessed  at  the  date  of  the  cession,  ex- 
cept so  far  as  this  right  was  diminished  by  the  public  lands  re- 
maining in  the  possession  and  under  the  control  of  the  United 
States.  Nothing  remained  in  the  United  States,  according  to 
the  terms  of  the  agreement,  but  the  public  lands.  And,  if  an 
express  stipulation  had  been  inserted  in  the  agreement  granting 
the  municipal  right  of  sovereignty  and  eminent  domain  to  the 
United  States,  such  stipulation  would  have  been  void  and  inop- 
erative, because  the  United  States  have  no  constitutional  capac- 
ity to  exercise  nmnicipal  jurisdiction,  sovereignty,  or  eminent 
domain  within  the  limits  of  a  state,  except  in  cases  in  which  it 
is  expressly  granted.  *  *  *  in  the  case  of  Martin  v.  Wad- 
dell,^  the  present  chief  justice,  in  delivering  the  opinion  of  the 
court,  said:    'When  the  revolution  took  place,  the  people  of 

»3  How.  223.  816  Pet.  410. 

(45) 


§   32  Ari'ROl'RIATlOX   OF   WATERS.  Ch.  3.] 

each  state  became  themselves  sovereij^n,  and  in  that  charac- 
ter hold  the  absolute  rij,dit  to  all  their  navigaljle  waters,  and 
the  soils  under  thrni,  for  their  own  common  use,  subject  only 
to  the  rights  since  surrendered  by  the  constitution.'  To  Ala- 
bama, then,  belong  the  navigable  waters,  and  soils  under  them, 
in  controversy  in  this  case,  subject  to  the  rights  surrendered  by 
the  constitution  to  the  United  States."  Recognizing  the  power 
of  the  United  States  over  such  navigable  streams  for  the  pur- 
pose of  regulating  commerce,  the  court  adds:  "The  right  of  em- 
inent domain  over  the  shores  and  the  soils  under  the  navigable 
waters,  belongs  exclusively  to  the  states  within  their  respective 
territorial  jurisdictions,  and  they,  and  they  only,  have  the  con- 
stitutional power  to  exercise  it.  *  *  *"  Summing  up  its 
conclusions,  the  court  said:  ^^ First,  the  shores  of  navigable  wa- 
ters, and  the  soils  under  them,  were  not  granted  by  tlie  constitu- 
tion to  the  United  States,  but  were  reserved  to  the  states  respect- 
ively; secondly,  the  new  states  have  the  same  rights,  sovereignty, 
and  jurisdiction  over  this  subject  as  the  original  states;  thirdly, 
the  right  of  the  United  States  to  the  public  lands,  and  the  power 
of  congress  to  make  all  needful  rules  and  regulations  for  the  sale 
and  disposition  thereof,  conferred  no  power  to  grant  to  the  plain- 
tiffs the  land  in  controversy  in  this  case." 

§  32.     Power  of  government   to   annex  conditions 
to  grants. 

Over  the  public  domain  within  a  state,  and  the  innavigable 
streams  and  lakes  situated  thereon,  the  United  States  has  there- 
fore only  the  rights  of  a  proprietor.  Undoubtedly,  as  held  in 
the  case  of  Union  Mill  &  Min.  Co.  v.  Ferris,^  by  virtue  of  its 
proprietorship,  the  United  States  has  a  perfect  title  to  the  pub- 
lic domain,  and  an  absolute  and  unqualified  right  of  disposal; 
and  neither  a  state  nor  a  territorial  legislature  can  modify  or  af- 

»2  Sawy.  176,  before  Sawyer  and  Ilillyer,  JJ. 
(46) 


^h.  3.]  APPROPRIATION   OF   WATERS.  §    32 

feet,  in  any  manner,  the  right  of  the  federal  government  to  the 
primary  disposal  of  the  public  land.  Also  an  innavigable 
stream  or  lake,  lying  within  the  public  domain,  is  a  part  and 
parcel  of  the  land  itself,  inseparably  annexed  to  the  soil,  and 
the  use  of  it  is  an  incident  to  the  soil,  and  as  such  passes  to  the 
patentee  of  the  soil  from  the  United  States.  As  the  federal  gov- 
<irnment,  in  conveying  any  particular  portion  of  its  public  do- 
main within  a  state  to  a  particular  grantee,  may  as  proprietor 
annex  any  conditions  to  the  conveyance,  so  that  the  title  will  be 
taken  and  held  subject  thereto,  so  it  may,  by  congressional  leg- 
islation, adopt  any  general  regulations  imposing  any  conditions 
or  limitations  upon  the  use  of  the  public  domain  by  all  persons, 
or  upon  all  persons  who  acquire  title  to  portions  of  the  public 
domain  from  the  government,  and  the  titles  so  acquired  will  be 
held  by  the  grantees  thereof  subject  to  such  conditions  and  lim- 
itations. Thus,  congress  may  provide,  by  general  statute,  for 
a  right  of  way  over  the  public  lands  unsold,  for  the  ditches  and 
canals  of  those  who  have  made  a  prior  appropriation  of  water, 
and  that  all  grantees  who  subsequently  acquire  portions  of  this 
land  shall  take  and  hold  their  titles  subject  to  such  existing 
rights  of  way;  or  that  all  grantees  of  the  public  lands  bordering 
upon  a  stream  shall  take  and  hold  their  titles  subject  to  any 
previously  existing  appropriation  of  its  water;  or  that  all  grant- 
ees of  the  public  lands  shall  take  their  titles  subject  to  the  local 
customs  or  laws  of  the  state  within  which  the  lands  are  situated, 
concerning  the  uses  of  water  for  mining,  irrigating,  agriculture, 
and  other  purposes.  Congress  has,  in  fact,  adopted  such  legis- 
lation, prescribing  rules  concerning  the  disposition  of  public 
lands,  and  imposing  conditions  or  limitations  upon  the  titles 
obtained  by  purchasers.  By  one  section  of  the  act  of  1866,  al- 
ready mentioned,  it  is  enacted:^   "Asa  condition  of  sale,  in  the 

iRev.  St.  U.  S.  §2338. 

(47) 


§  33  ArrRorRiATioN  of  waters.  [Ch.  3. 

Absence  of  necessary  legislation  by  congress,  the  local  legislature 
of  any  state  or  territory  may  i)rovidc  rules  for  working  mines, 
involving  easements,  drainage,  and  other  necessary  means  to 
their  complete  development;  and  those  conditions  shall  be  fully  ex- 
pressed in  Oie  patent.'"  The  patent  here  spoken  of  is  clearly  that 
issued  by  tlie  United  States  to  the  purchasers  and  other  grant- 
ees of  the  public  domain,  and  such  grantees  take  their  titles  sub- 
ject to  easements  and  other  similar  rights  held  by  other  persons 
under  the  customs  and  laws  of  the  state. ^  This  power  of  the 
United  States  to  impose  conditions  and  limitations  upon  the  use 
of  the  lands  within  a  state,  wliich  were  originally  public,  is  con- 
fined to  their  j)n»i/trv  dis})osal  to  its  immediate  grantees.  If, 
therefore,  the  public  land  bordering  upon  a  stream,  and  situate 
within  a  state,  should  all  be  conveyed  to  private  persons,  free 
from  any  conditions  or  limitations,  congress  would  have  no 
power  to  control  such  persons  in  the  use  of  their  lands  or  in  the 
use  of  the  stream  upon  which  their  lands  border.  The  power 
to  legislate  and  to  prescribe  rules  under  these  circumstances  be- 
longs exclusively  to  the  state,  as  a  part  of  its  supreme  munici- 
pal authority  over  persons  and  property  within  its  jurisdiction. 

IV.     Conflicting  Claims   between  Settlers  and  Appropri- 

ATORS. 

§  33.     Converse  of  doctrine  of  appropriation. 

It  has  already  been  shown  that  the  prior  appropriation  of 
water  wholly  upon  the  public  lands  of  the  United  States  is  good 
against  subsequent  grantees  or  patentees  of  tracts  upon  the  same 
stream  or  lake  deriving  their  titles  from  the  federal  government.* 
It  follows,  by  necessary  implication  from  this  statute,  as  well 

'See  the  observations  of  Sawyer,  ^gge  ante,  §§  25-28;  Act  Cong. 

J.,  in  Woodruff  v.  North  Bloom-      July  9.  1870. 
field  G.  M.  Co..  9  Sawy.  441,  s.  c. 
18  Fed.  Rep.  801. 

(48) 


Ch.  3.]  APPROPRIATION   OF   WATERS.  §   34 

as  on  general  principle,  that  if  a  person  has  acquired  title  from 
the  United  States  to  a  tract  bordering  upon  a  stream  or  lake  ly- 
ing within  the  public  domain,  before  an  appropriation  has  been 
made  of  its  waters,  any  subsequent  appropriation  of  its  waters, 
made  by  another  person,  in  pursuance  of  the  local  customs  or 
laws  recognized  by  the  legislation  of  the  state  and  of  congress, 
must  be  subject  to  such  prior  title,  and  to  the  riparian  rights 
belonging  to  the  holder  thereof.^ 

§  34.     When  title  from  United  States  is  perfected. 

When  does  a  person  thus  acquire  a  title  from  the  United 
States,  within  the  meaning  of  this  rule,  so  that  any  subsequent 
appropriation  of  water  shall  be  subject  thereto?  The  legisla- 
tion of  congress  provides  for  various  modes  of  acquiring  title  to 
public  lands  by  different  classes  of  persons, — by  ordinary  actual 
purchasers,  by  pre-emptors,  by  homestead  settlers,  and  the  like. 
In  all  these  instances  the  claimant  is  required  to  do  certain  pre- 
liminary acts, — to  file  a  declaration  or  notice,  to  make  a  loca- 
tion, to  pay  the  purchase  price,  and  the  like;  and  after  all  these 
acts  have  been  duly  performed  by  him,  including  the  payment 
of  the  price,  if  necessary,  he  is  entitled  to  receive  a  patent  from 
the  government,  which  is  executed  and  delivered  to  him  by  the 
proper  officer,  usually  after  some  lapse  of  time.  In  all  cases 
these  steps  must  be  taken  in  respect  to  land  which  has  been  sur- 
veyed by  the  government,  or  else  the  whole  proceeding  is  nu- 
gatory. Wherever  a  patent  is  required  by  the  legislation,  no  legal 
title  passes  to  and  vests  in  the  purchaser,  occupant,  or  other 
grantee  until  the  patent  is  executed  and  delivered;  the  patent 


1  Union  Mill  &  M.  Co.  v.  Ferris,  Haines,  7  Nev.  249;  and  see  Cran- 

2  Sawy.  176;  Union  Mill  &  M.  Co.  dall  v.Woods,  8  Cal.  136;  Leigh  Co. 

V.  Dangberg,  Id.  450;  Van  Sickle  v.  v.  Independent  Ditch  Co.,  Id.  323. 

POM.RIP. — 4  (49) 


§   35  APPROPRIATION  OF  WATERS.  [Ch.  3. 

alone  is  the  final  conveyance  of  the  legal  estate.  If,  however, 
the  settler,  pre-eniptor,  or  purchaser  has  duly  complied  with  all 
the  requirements  of  the  statute,  including,  if  necessary,  the  pay- 
ment of  the  purchase  price,  so  that  nothing  is  left  to  be  done 
by  iiim  in  order  to  entitle  him  to  a  patent,  he  certainly  acquires 
an  equitable  estate  in  the  tract  of  land, — an  equitable  estate 
which  the  courts  will  and  do  protect.  When  a  person  has  thus 
done  all  that  he  is  required  to  do,  and  all  that  he  can  do  to  per- 
fect his  title,  and  must  await  the  convenience  or  leisure  of  the 
proper  governmental  official  in  obtaining  the  conveyance  which 
clothes  him  with  a  complete  legal  estate,  it  would  be  in  the  high- 
est degree  unjust  and  inequitable  if  his  rights,  as  a  prior  pur- 
chaser or  grantee  from  the  government,  could  be  posti^oned,  or 
endangered,  or  in  any  way  prejudiced  or  affected,  by  a  delay 
in  the  actual  execution  and  delivery  of  the  patent  to  him. 

§  35.     When  patentee's  riparian  rights  vest. 

We  thus  reach  a  conclusion  which  is  in  accordance  with  the 
plainest  principles  of  equity,  that  the  rights  of  a  prior  purchaser 
or  grantee  of  public  land  from  the  government,  as  against  any 
subsequent  appropriator  of  water,  become  vested  and  jDcrfect, 
at  least  from  the  time  when  he  has  duly  performed  all  the  stat- 
utory requirements,  including,  if  necessary,  the  payment  of  the 
purchase  price,  which  entitle  him  to  a  patent  or  other  final  con- 
veyance or  evidence  of  his  legal  title,  and  not  merely  from  the 
time  when  he  actually  receives  his  patent  or  other  final  conve}^- 
ance.  Whether  his  rights  are  not  even  more  extensive;  whether, 
after  he  has  duly  performed  all  the  statutory  requirements,  and 
has  perfected  his  title  by  obtaining  a  patent,  his  rights  as  a  prior 
grantee,  purchaser,  or  owner  do  not  relate  back  to  the  date  of 
the  first  or  initiative  act  in  the  whole  continuous  proceeding, — 
is  another  question  which  will  be  separately  examined. 

C50; 


Ch.  3.]  APPROPRIATION   OF  WATERS.  §   36 

§  36.     Revie-w  of  the  authorities  on  this  point. 

The  above  proposition,  that  the  prior  rights  of  the  grantee, 
purchaser,  or  private  owner  under  the  government  are  at  least 
vested  and  complete,  as  against  any  subsequent  ai)propriator  of 
water,  by  the  due  performance  of  all  the  preliminary  steps, 
including  payment,  which  entitle  him  to  a  patent,  and  do  not 
originate  solely  from  the  patent  nor  attach  only  from  the  date 
of  its  delivery,  seems  to  be  fully  settled  by  the  decisions.  In 
Union  Mill  &  Min.  Co.  v.  Dangberg,^  the  court  held  that  one  who 
has  entered  a  tract  of  the  public  lands,  under  the  provisions  of 
the  statutes  of  congress,  and  has  fully  paid  for  it,  and  has  re- 
ceived the  certificate  of  purchase  from  the  governmental  official, 
becomes  vested  with  the  equitable  title,  and  as  such  equitable 
owner  is  entitled  to  all  the  water-rights  of  a  rijjarian  proprietor, 
even  though  he  has  not  yet  received  a  patent.  Also  that  one 
who  has  duly  entered  a  tract  of  land  in  conformity  with  the 
requirements,  of  the  homestead  act,  and  continues  to  reside 
thereon,  becomes  entitled  to  the  water-rights  held  by  any  ripa- 
rian owners.  And,  in  general,  a  person  who  entered  and  paid 
for  a  tract  of  the  public  lands  before  the  act  of  1866,  holds  his 
land  unaffected  by  that  act,  since  his  patent  will  relate  back  to 
the  date  of  his  entry, — the  inception  of  his  title. 

In  the  very  important  case  of  Van  Sickle  v.  Haines,^  the  su- 
preme court  of  Nevada  decided  the  following  general  proposi- 
tions: As  the  United  States  has  an  absolute  and  perfect  title  to, 
and  unqualified  property  in,  the  public  lands;  and  as  running 
water  is  an  incident  to  or  part  of  the  soil  over  which  it  natu- 
rally flows, — a  patent  given  to  a  private  person — in  the  absence 
of  any  special  limitations  or  exceptions  or  easements  contained 
in  the  instrument  itself,  or  created  by  statute — carries  not  only 

12  Sawy.  450;  and  see  Union  Mill  &  M.  Co.  v.  Ferris,  2  Sawy.  176. 
8  7NeY.  249. 

(51) 


§36  APPROPRIATION   OF   WATERS.  [Cll.  3. 

the  unincumbered  fee  of  the  soil,  but  the  stream  naturally  flow- 
ing through  it,  and  the  same  rights  to  its  use,  or  to  recover  for 
a  diversion  of  it,  as  the  United  States  or  any  other  absolute 
owner  could  have.  An  owner  of  land  over  which  a  stream  nat- 
urally flows  has  a  right  to  the  benefits  which  the  stream  afibrds, 
independently  of  any  particular  use;  that  is,  he  has  an  absolute 
and  complete  right  to  the  flow  of  the  water  in  its  natural  chan- 
nel, anil  the  right  to  make  such  use  of  the  water,  when  he  chooses^ 
as  will  not  damage  others  located  on  the  same  stream  and  en- 
titled to  equal  riglits  with  himself.  A  patent  to  land  from  the 
United  States,  in  the  absence  of  any  statutory  or  other  limita- 
tions, carries  with  it  a  natural  stream  running  through  the  land 
as  an  incident  thereto,  together  with  the  right  to  have  it  re- 
turned to  its  channel  if  diverted.  It  follows,  therefore,  in 
the  absence  of  special  legislation  to  the  contrary,  that  a  pre- 
emptioner,  while  occupying  and  improving  one  quarter  section 
of  the  public  land,  has  no  right  to  enter  upon  another  quarter 
section,  to  which  he  makes  no  claim,. and  divert  from  it  a  val- 
uable stream  of  water  for  the  benefit  of  the  land  which  he  is 
claiming.  In  regard  to  the  general  doctrine  of  riparian  rights 
among  the  various  proprietors  of  private  lands  on  the  borders  of 
a  stream,  the  court  holds  that  the  territorial  statute,  adopting 
the  common  law  of  England,  was  ratified  and  embraced  by  the 
state  constitution;  that  the  common-law  doctrine  as  to  run- 
ning water  allows  all  riparian  proprietors  to  use  it  in  any  man- 
ner not  incompatible  with  the  rights  of  others,  so  that  no  one 
can  absolutely  divert  all  the  water  of  a  stream,  but  must  use  it 
in  such  a  manner  as  not  to  injure  those  below  him;  that  the 
early  decisions  of  Nevada,  and  those  of  California,  holding  that 
priority  of  appropriation  gave  a  right  to  the  use  of  water,  were 
made  in  cases  where  there  was  no  title  to  the  soil,  and  have  no 
bearing  in  cases  where  absolute  title  has  been  acquired. 
(52) 


€h.  3.]  APPROPRIATION   OF    WATERS.  §   36. 

In  Leigh  v.  Independent  Ditch  Co.^  the  complaint  alleged 
that  the  plaintiffs  were  owners  and  in  possession  of  a  certain 
tract  of  mining  land  through  which  a  natural  stream  flowed, 
and  that  defendants  had  diverted  the  waters  thereof  to  their 
injury,  and  prayed  relief.  Defendants  demurred  to  this  com- 
plaint, on  the  ground  that  it  did  not  allege  any  appropriation 
or  use  of  the  waters  by  the  plaintiffs.  The  court  said:  "The 
demurrer  was  properly  overruled.  The  allegation  that  the  plain- 
tiffs were  the  owners  and  in  the  possession  of  the  mining  claims 
][the  tract  of  land]  was  sufficient.  And  the  ownership  and  pos- 
session of  the  'claims'  draw  to  them  the  right  to  the  use  of  the 
water  flowing  in  the  natural  channel  of  the  stream.  The  diver- 
sion of  the  water  was  therefore  an  injury  to  the  plaintiffs,  for 
which  they  could  sue.  The  principle  involved  in  this  case  was 
expressly  decided  by  this  court  in  the  case  of  Crandall  v.  Woods. ^ 
In  that  case  it  was  said :  '  One  who  locates  upon  public  lands, 
with  the  view  of  appropriating  them  to  his  own  use,  becomes 
the  absolute  owner  thereof,  as  against  every  one  but  the  govern- 
ment, and  is  entitled  to  all  the  privileges  and  incidents  which 

18  Cal.  323,  (1857.)  the  waters  thereof  perfect,  or  at 

28    Cal.  136,   (1857.)    The   point  least  do  not  entitle  him  to  any  re- 

actually  decided  in  this  case  is,  of  lief  against  a  diversion  of  such  wa- 

course,  authoritativel3^  settled  by  ters  by  another  person;  that  even 

the  later  utterance   of  the   same  the  prior  oicner  of  the  land  must 

court  made  in  the  subsequent  case,  have  made  some  actual  appropria- 

as  quoted  above  in  the  text.     A  tion  of  the  water  to  his  own  uses, 

perusal  of  the  opinion  in  Crandall  before  he  can  maintain  an  action 

V.  Woods  would  leave  it  doubtful,  against  the  diversion  bj^  another 

to  say  the  least,  in  the   absence  person  whose  claim  is  subsequent 

of  the  subsequent  interpretation,  to  his  own.     In  other  words,  that 

whether  such  a  point  was  decided,  mere  prior  oicnership   of  riparian 

Some  portions  of  the  opinion  seem  lands  does  not  confer  full  and  per- 

to  intimate— even  if  they  do  not  feet  riparian  rights  to  the  water, 

expressly    hold  —  that    the    mere  See,  also,  to  the  same  effect,  Ne- 

prior  ownership  and  possession  of  a  vada  Co.  &  Sac.  Canal  Co.  v.  Kidd, 

tract  of  land  upon  a  stream  do  not  37  Cal.  283. 
render  the  proprietor's  rights  to 

(53) 


§   86  APPROPRIATION    OF   WATERS.  [Ch.  3. 

appcrUiin  to  the  soil,  subject  to  the  single  exception  of  rights 
antecedently  acquired.'" 

The  conclusion  heretofore  reached,  that  the  rights  of  a  prior 
grantee  or  purchaser  from  the  United  States,  as  against  subse- 
quent appropriators  of  water,  must  be  regarded  as  complete  and 
perfect,  at  the  latest,  from  the  time  when  he  has  fully  performed 
all  of  the  statutory  requirements,  including  payment,  which  en- 
title him  to  a  patent,  and  not  from  the  time  of  his  receiving  a 
patent,  may  appear,  perhaps,  to  conflict  with  the  recent  decis- 
ion in  Osgood  v.  El  Dorado,  etc.,  Co.;^  but  a  careful  examina- 
tion of  that  case  shows  that  no  such  conflict  was  intended,  and 
none  could  legitimately  arise  upon  the  facts.  The  plaintiff  re- 
lied upon  the  doctrine  of  relation,  in  order  to  carry  his  right 
back  to  his^rsi  proceedings,  which  were  earlier  than  those  of 
the  defendants,  and  the  court  simply  held  that  on  the  facts  the 
doctrine  of  relation  did  not  apply.  The  plaintiff's ^rsi  step  was 
taken  wliile  the  lands  were  unsurveyed;  and  his  earliest  legiti- 
mate proceeding  was  subsequent  to  the  date  at  which  defend- 
ants' rights  of  appropriation  accrued. 

'56  Cal.  571,  578.     My  reference  ance  of  his  patent."    But  this  lan- 

to  this  decision  on  a  previous  page  guage  cannot  have  been  intended 

{ante,  ^  26)  does   not  describe  it  to  lay  down  a  general  rule  appli- 

with  perfect  accuracy,  and  needs  cable  to  all  pre-emptors;  it  must 

some  correction.     It  is  true  that  have  referred  entirely  to  the  par- 

the  reporter's  head-note  represents  ticular  facts  of  that  case.     This 

the  court  as  laying  down  the  fol-  plainly  appears  from  the  sentence 

lowing  general  rule:  "In  a  ques-  immediately  preceding,  and  from 

tion  of  priority  of  right  between  the  cases  which  he  cites  in  support 

an  appropriator  of  water  on  the  of    his    conclusion, —  these    very 

public  lands  and  a  pre  emptor,  the  cases  recognizing  the  rule  that  a 

rights  of  the  latter  date  from  the  grantee's  riijht  7nay  relate  back  ta 

issuance  of  his  patent.  "    It  is  also  a  date  before  that  of  his  patent. 

true  that  Mr.  Justice  Ross  says,  in  He  says:   "The  plaintiff  seeks  to 

hiaopinion:  "The plaintiff's  rights  invoke  the  doctrine   of  relation; 

must  therefore  be  held  to  have  at-  but  for  obvious  reasons  no  case 

tached  on  the  twenty-fifth  of  Oc-  was  made  for  the   application  of 

tober,  1871,  the  date  of  the  Issu-  that  doctrine. "    The  plaintiff  took 

(64; 


Ch.  3.]  APPROPRIATION    OF   WATERS.  §  36 

In  Farley  v.  Spring  Valley  Min.,  etc.,  Co/  the  plaintiff,  a 
pre-emptor,  had  settled  on  public  lands  of  the  United  States, 
and  filed  his  declaratory  statement  on  February  27,  1871;  he 
had  proved  up  and  paid  the  purchase  price  in  1877;  and  he 
received  his  patent  on  January  23,  1879.  The  defendants 
made  an  appropriation  of  water  after  1871,  but  before  1877. 
The  court  held  that  the  plaintiff's  rights  as  a  private  propri- 
etor only  accrued  in  1877,  when  he  had  proved  up  and  paid 
the  price;  and  he  was  therefore  a  subsequent  purchaser  as 
against  a  prior  appropriation  of  the  defendants.  This  case 
clearly  recognizes  the  doctrine  that  the  rights  of  a  grantee  or 
purchaser  from  the  United  States,  as  against  another  party 
claiming  under  the  government,  do  not  accrue  from  the  time 
of  executing  and  delivering  his  patent  alone;  but  are  complete 
when  his  equitable  estate  is  perfected  by  his  performing  all  of 
the  requisites  which  entitle  him  to  receive  a  patent. 

The  rights  of  the  prior  owner  of  a  tract  bordering  on  a  stream, 
as  against  a  subsequent  appropriator  of  its  waters  upon  the  pub- 
lic domain,  are  impliedly,  even  if  not  expressly,  recognized  by 

possession  of  bis  land  several  made  on  the  facts.  [But  a  recent 
years  before  it  was  survej'ed.  It  authority  speaks  of  this  case  in 
was  surveyed  in  1865.  In  June,  the  following  language:  "Osgood 
1868,  he  flle'd  bis  first  declaration  v.  Water  Co.  presented  a  question 
as  a  pre-emptor;  in  1870  he  had  of  priority  between  an  appropri 
paid  up;  and  in  1871  he  received  ator  of  water  on  lands  of  the  Unit- 
bis  patent.  But  the  defendants  ed  States  and  a  pre-emptioner.  It 
bad  taken  their  first  step,  from  was  there  held  that,  by  reason  of 
which  their  rights  of  appropriation  the  express  language  of  the  seven- 
arose,  in  March,  1867.  It  thus  ap-  teenth  section  of  the  act  of  con- 
pears  that,  even  if  the  plaintiff's  gress  of  July  9, 1870,  amending  the 
title  did  relate  back  to  the  date  of  act  of  July  26,1860,  the  rights  of  the 
bis  declaration  in  1868,  it  was  still  pre-emption  claimant,  as  against 
subsequent  to  defendants'  right  an  appropriator,  date  only  from 
of  appropriation,  which  accrued  his  patent  or  certificate  of  pur- 
in  1867.  The  remark  that  plain-  chase. "  Lux  v.  Haggin,  (Cal.)  10 
tiff's  title  attached  at  the  date  of  Pac.  Rep.  782.] 
his  patent  was  not,  therefore,  es-  ^58  Cal.  143. 
sential  to    the    decision    actually 

(65) 


§   37  APPROPRIATION   OF   WATERS.  [Ch.  3. 

other  decisions.  In  Gibson  v.  Puchta^  the  court  held  that 
when  the  title  of  two  j)arties  to  puljlic  mineral  lands  is  based 
on  possession  alone,  the  older  possession  gives  the  better  title 
as  between  the  two,  even  though  the  elder  possessor  uses  his 
land  for  agriculture  and  the  younger  for  mining.  In  such  a 
case,  their  rights,  as  against  each  other,  depend  upon  the  com- 
mon-law doctrines  ai»plicable  to  adjoining  land-owners.  The 
agricultural  occupant  has  a  right  to  use  the  water  for  the  pur- 
pose of  irrigating  his  own  land  in  a  proper  and  reasonable  man- 
ner, and  no  cause  of  action  can  arise  against  him  for  such  use, 
even  though  the  mining  occupant  may  sustain  some  injury 
therefrom;  he  would  only  be  liable  for  a  negligent  or  willful 
injury  done  to  the  other  occupant  by  means  of  his  irrigation. 
What  is  thus  true  of  an  occupant  whose  title  to  a  riparian  tract 
of  the  public  lands  rests  wholly  upon  a  prior  possession,  must 
'certainly  be  true  of  an  owner  whose  title  to  such  a  tract  rests 
upon  a  prior  patent,  conveyance,  or  other  grant  from  the  United 
States. 

§  37.     Riparian  rights  protected. 

In  Wixon  v.  Bear  River,  etc.,  Co. ^  the  court  held  that  if  a 
tract  of  land  on  the  bank  of  a  stream  in  the  mineral  regions  is 
inclosed  and  appropriated  for  the  purposes  of  a  garden  or  orchard, 
and  the  water  of  the  same  stream  is  afterwards  appropriated 
by  another  person  for  mining  purposes,  at  a  point  above  the 
tract,  the  water  subsequently  appropriated  must  be  used  so  as 
not  to  injure  the  garden,  orchard,  or  fruit  trees;  that  one  who 

'33  Cal.  310.  seems  to  have  given  miners  a  right 

224  Cal.  307;  and  see  Rupley  v,  to  enter  upon  the  lands  of  prior  oc- 

Welch,  23  Cal.  403;  Hill  v.  Smith,  ciipants   used  solely  for  farming 

27Cal.47G.    The  right  of  the  prior  purposes,   when    situated    iu   the 

occupant  was  here  merely  posses-  mineral  regions;    the   interest  of 

Bory  as  against  the  United  States,  such    occupants  being  only  pos- 

An    early    statute    of    California  sessory. 
(56) 


Ch.  3.]  APPROPRIATION   OF    WATERS.  §   38 

incloses  a  tract  of  public  land  in  the  mineral  regions,  and  plants 
it  with  fruit  trees,  acquires  a  vested  right  therein,  and  a  subse- 
quent appropriator  must  use  the  water  for  mining  purposes  so 
as  not  to  disturb  such  vested  right,  or  destroy  or  injure  the  gar- 
den or  orchard. 

The  rights  of  a  private  owner  who  has  obtained  a  full  title  to 
a  tract  of  land  bordering  upon  a  stream  have  been  stated  by 
quite  recent  decisions  of  the  California  supreme  court.  "As  be- 
ing owners  of  the  land,  the  plaintiffs  have  an  interest  in  the  liv- 
ing stream  of  water  flowing  over  the  land;  their  interest  is  called 
the  'riparian  right.'  Under  settled  principles,  both  of  the  civil 
and  the  common  law,  the  riparian  proprietor  has  a  usufruct  in 
the  stream  as  it  passes  over  his  land."'  In  Creighton  v.  Evans^ 
the  same  court  held  that  the  right  of  a  riparian  private  owner 
to  have  the  water  of  the  stream  run  through  his  land  is  a  vested 
right,  and  any  interference  with  it  by  another  person  gives  him 
a  cause  of  action  for  appropriate  relief;  that  a  diversion  of  the 
water  by  one  who  is  not  a  riparian  pro})rietor  on  the  same  stream 
is  a  legal  wrong  to  the  person  who  is  such  a  riparian  owner;  that 
a  person  who  is  not  a  riparian  proprietor  has  no  right  to  take 
any  water  from  the  stream ,  even  if  enough  is  left  for  the  uses  of 
the  riparian  owner, — even  if  the  latter  has  sustained  no  actual 
damage  from  the  diversion. 

§  38.     Doctrine  of  relation  applied  to  patentees. 

It  having  been  shown  that  the  rights  of  a  patentee  from  the 
United  States,  as  a  prior  purchaser  or  owner,  relate  back  at  least 
to  the  time  when  he  has  duly  performed  all  the  acts,  including 
payment,  which  entitle  him  to  a  patent,  the  question  still  re- 
mains whether  his  rights  do  not  in  fact  relate  back  to  the  date 
of  his  first  or  initiative  st^p  in  the  course  of  proceedings  i)re- 

1  Pope  V.  Kingmaa,  54  Cal.  3,  5.         253  Cal.  55. 

(57) 


§    39.  APrUOPRIATION   OF   WATERS.  [Ch.  3. 

scribfxl  by  conf,'rc.ss, — as  in  case  of  a  pre-einptor,  to  the  filing 
of  liis  declaratory  statement. 

§  39.  Grounds  for  the  application  of  tliis  doctrine. 
This  question  arises  in  the  construction  and  application  of 
general  statutes  of  congress,  which  were  intended  to  encourage 
actual  settlers  and  occupants  of  the  public  lands,  by  providing 
a  means  for  such  actual  settlers  to  acquire  the  private  ownership 
of  tracts  of  land,  and  for  such  actual  occupants  to  acquire  the 
right  to  divert  and  use  the  waters  of  streams.  The  same  policy 
plainly  underlies  the  whole  system  of  legislation.  When  any 
conflict  arises  between  parties  seeking  to  avail  themselves  of 
these  different  statutes,  —  between  parties  seeking  to  acquire 
tracts  of  land  under  one  set  of  statutes  and  parties  seeking  to 
acquire  water-rights  under  another, — it  would  seem  to  be  just  ■ 
and  reasonable  that  the  same  principle  or  method  of  construc- 
tion and  interpretation  should  be  extended  to  all  these  statutes 
in  determining  the  rights  of  such  conflicting  claimants.  In  re- 
spect to  the  appropriator  of  water  on  the  public  lands,  when  he 
has  duly  posted  and  given  the  notices  of  his  appropriation,  and 
has  followed  up  this  initiative  by  proceeding  to  construct  hi& 
ditches,  dams,  and  other  works  with  reasonable  diligence,  and 
without  unreasonable  delay,  his  right  of  appropriation,  when 
his  works  are  thus  completed,  relates  back  to  the  date  of  his 
first  or  preliminary  act.^  This  rule  seems  to  be  fully  settled. 
In  cases  of  conflict  as  to  priority  of  right  between  such  appro- 
priator of  water  and  a  patentee  of  land  from  the  United  States, 
it  would  seem  to  be  just  and  reasonable  that  the  same  rule  of 
interpretation  should  be  extended  to  the  other  similar  legisla- 
tion of  congress  by  which  private  persons  are  authorized  to  ac- 
quire title  to  portions  of  the  public  domain  as  pre-emptors, 
homestead  occupants,  and  the  like.     Congress  has  given  no  in- 

1  See  Osgood  v.  El  Dorado,  etc.,  Co.,  56  Cal.  571. 
C58) 


Ch.  3.]  APPROPRIATION   OB'  WATERS.  §   41 

tiniation  of  a  policy  more  favorable  to  the  use  of  water  on  the 
public  domain  than  to  the  use  of  the  public  lands  for  all  other 
beneficial  purposes.  In  the  absence  of  decisions,  it  would  nat- 
urally be  supposed  that  the  same  rule  should  be  applied  to  all 
persons  who  acquire  rights  under  this  system  of  legislation,  iu 
determining  any  conflict  which  may  arise  between  them. 

§  40.     California  decisions. 

The  decisions  dealing  or  appearing  to  deal  directly  with  this 
question  are  very  few.  In  California  the  rule  is  settled  against 
the  claims  of  a  pre-emptor  who  has  received  his  patent  from  the 
United  States,  so  far  as  it  can  be  put  at  rest  by  one  decision. 
In  Farley  v.  Spring  Valley  M.  &  I,  Co.,^  the  plaintiff,  a  pre- 
emptor,  settled  on  government  land;  filed  his  declaratory  state- 
ment February  27,  1871;  proved  up  and  paid  in  1877;  and 
obtained  his  patent  January  23,  1879.  The  defendants  made 
an  appropriation  of  water  which  began  after  1871,  but  before 
1877.  The  plaintiff''s  right  was  held  lo  have  begun  only  in 
1877,  when  he  had  "proved  up  and  paid,"  and  he  was  there- 
fore a  subsequent  purchaser  to  the  defendant.  This  decision 
was  rested  upon  the  following  grounds:  The  public  land  be- 
longed to  the  United  States  until  the  plaintiff"  had  proved  up 
and  paid  in  1877.  Until  that  time  congress  had  full  power  to 
withdraw  the  land  from  sale,  and  to  sell  or  grant  it  to  another. 
Certain  cases  were  cited  as  expressly  sustaining  these  conclu- 
sions.^ 

§  41.    Revie-w  of  the  cases. 

With  great  respect  for  the  able  court  which  rendered  this  de- 
cision, and  deference  to  its  learning  and  ability  in  all  questions 

1 58  Cal.  142.  vis,  41  Cal.  489.   The  court  also  held 

2Name]y,  Frisbie  v.  Whitney,  9  that  under  the  acts  of  congress, 

Wall.    187;  Button  v.    Frisbie,  37  July  26,    1866,  and    July  9,   1870, 

Cal.  475;  Western  Pac.  R.  R.  v.  Te-  the  defendants  obtained  "existing 

(59) 


§  41  ArrnopRiATioN  of  waters.  [Ch.  3. 

connected  with  governmental  land  titles.  I  think  that  the  matters 
flctually  ilccidcd  in  Frisbie  v.  Whitney,  Hutton  v.  Frisbie,  and 
Wcbtern  I'ac.  II.  H.  v.  Tevis  do  not  sustain  the  conclusion  which 
they  reached  in  Farley  v.  Spring  Valley  M.  &  I.  Co. ;  that  a  care- 
ful examination  of  these  i)rior  cases  will  show  that  they  dealt 
witli  an  entirely  different  state  of  facts,  and  an  entirely  different 
kind  (if  legislation;  and  that  the  opinions  in  these  cases  avowedly 
and  eare fully  except  and  exclude  from  their  operation  such  ques- 
tions as  that  of  ])riority  of  right  between  a  pre-emptor  and  an 
ajipropriator  of  water,  arising  under  the  general  statutes  of  con- 
gress concerning  the  disposition  of  the  public  lands  among  pri- 
vate proi)rietors  or  occupants.  In  order  to  understand  the  ex- 
act points  decided  by  the  United  States  suj'reme  court  in  Fris- 
bie V.  Whitney,  and  the  character  of  the  legislation  to  which  it 
relates,  a  brief  statement  of  the  material  facts  is  necessary.  A 
certain  person,  whom  I  will  designate  as  A.,  held  a  Mexican 
grant  to  a  large  tract  of  land  in  California.  This  grant  was  for 
years  supposed  to  be  perfectly  valid,  and  A.'s  title  as  perfectly 
good.  He  had  from  time  to  time  sold  and  conveyed  portions 
of  it  to  divers  purchasers,  who  had  for  years  held  possession  of 
their  farms,  inclosed  them,  built  on  them,  planted  orchards,  and 
otherwise  ini])rovc'd  them,  under  the  supposition  that  the  titles 
obtained  from  A.  were  valid.  At  length  the  supreme  court  of 
the  United  States  decided  that  the  grant  to  A.  was  null  and  void, 
and  the  land  included  in  such  grant  was  therefore  the  public  do- 
main of  the  United  States,  subject  to  all  of  the  general  statutes  of 
congress  concerning  the  public  domain.  Immediately  upon  the 
rendition  of  this  decision,  a  great  number  of  persons  rushed  onto 

rights"  to  construct  and  use  their  course     the    real    question    was 

reservoir,   which    were    excepted  whether  the  defendants  had   any 

and  saved  in  the  patent  issued  to  such  "existing  rights"  at  the  time 

the    phiintiff;  citing  Jennison    v.  when  the  right  of  the  plaintiff  first 

Kirk,  08  U.  S.  460;  Broder  v.  Na-  accrued    and    became    vested    as 

toma.   etc.,   Co.,  50  Cal.   621.     Of  against  (ke  defendants. 
(60) 


Ch.  3.]  APPROPRIATION  OF   WATERS.  §   41 

the  tract,  and,  disregarding  the  rights  of  the  prior  occupants^ 
proceeded  to  locate  claims  as  pre-emptors  upon  it,  upon  the 
improved  and  cultivated  and  occupied  portions,  to  file  their  de- 
claratory statements,  and  to  take  the  other  steps  necessary,  un- 
der the  general  statutes,  in  order  to  secure  their  titles  as  pre- 
emptors  of  the  public  lands.  This  proceeding  was  a  palpable 
wrong  to  the  bona  fide  and  innocent  occupants  who  were  thus  dis- 
possessed. In  this  condition  of  facts,  congress  interfered,  after 
the  pre-emptors  had  filed  their  declaratory  statements,  but  before 
they  had  paid  the  price  so  as  to  be  entitled  to  patents,  and  by  a 
special  statute,  applicable  to  the  lands  included  in  A.'s  grant, 
withdrew  those  lands,  or  at  least  such  portions  of  them  as  had 
been  sold  to  6ona_^de  purchasers,  from  sale  or  pre-emption  under 
the  general  statutes,  and  confirmed  and  established  the  rights  and 
titles  of  such  ipriov  bona  fide  purchasers  holding  under  A.'s  grant, 
as  against  the  claims  of  the  pre-emptors  who  had  located  tracts 
and  filed  declarations,  but  had  not  yet  proved  up  and  paid.  A 
controversy  arose  concerning  the  ownership  of  a  certain  tract  be- 
tween a  pre-emptor  and  a  prior  purchaser  and  occupant  under 
A.'s  grant,  which  the  supreme  court  of  the  United  States  finally 
decided  in  the  case  of  Frisbie  v.  Whitney.^  As  the  reporter's 
head-note  accurately  describes  the  questions  passed  upon  by  the 
court,  it  will  be  sufficient  to  quote  it,  without  giving  more  elab- 
orate extracts  from  the  opinion.  It  will  be  seen  that  all  the 
equities  were  strongly  in  favor  of  the  prior  occupants  and  against 
the  pre-emptors.  The  head-note  is  as  follows:  "Occupation 
and  improvement  on  the  public  lands,  with  a  view  to  pre-emp- 
tion, do  not  confer  a  vested  right  in  the  land  so  occupied,  [i.  e., 
as  the  rest  of  the  case  plainly  shows,  a  vested  right  against  the 
United  States.]  It  does  confer  a  preference  over  others  in  the 
purchase  of  such  land  by  the  bona  fide  settler,  which  will  enable 

19  Wall.  187. 

61) 


§    41  APPROPRIATION    OF   WATERS.  [Ch.  3. 

him  to  protect  his  posseasimi  against  other  individuah,  and  which  the 
land-onicprs  are  bound  to  respect.  This  inchoate  xight  may  be 
protected  by  the  courts  against  the  claims  of  other  persons  who 
have  not  an  equal  or  superior  right,  but  it  is  not  valid  against 
the  United  States.  The  power  of  congress  over  the  public  lands, 
as  conferred  by  the  constitution,  can  only  be  restrained  by  the 
courts,  in  cases  where  the  land  has  ceased  to  be  government 
])roperty  by  reason  of  a  right  vested  in  some  person  or  corpora- 
tion. Such  a  vested  right,  under  the  pre-emption  laws,  is  only 
obtained  when  the  purcliase  money  has  been  paid,  and  the  re- 
ceipt of  the  proper  land-officer  given  to  the  purchaser.  Until 
this  is  done,  it  is  within  the  legal  and  constitutional  competency 
of  congress  to  ivithdraw  the  land  from  entry  or  sale,  though  this  may 
defeat  the  imperfect  right  of  the  settler."  The  case  of  Hutton  v. 
Frisbie^  was  an  exactly  similar  controversy,  growing  out  of  the 
very  same  transaction,  involving  exactly  the  same  questions, 
which  the  supreme  court  of  California  decided  in  the  same  man- 
ner. In  Western  Pac.  R.  R.  v.  Tevis'  the  court  held,  for  the 
same  reasons,  that  congress  has  power,  by  a  special  statute  giv- 
ing the  right  of  way  over  the  public  lands  of  the  United  States 
to  a  railroad  company,  to  include  within  such  statutory  grant, 
and  thus  convey  to  the  railroad,  portions  of  the  public  lands 
which  pre-emptors  had  previously  entered,  located,  and  claimed, 
under  tlie  pre-emption  laws,  but  for  which  they  had  not  yet 
paid  and  received  certificates  of  purchase. 

It  is  plain  that  the  courts  do  not  intend,  in  these  three  cases, 
to  touch  upon  the  question,  to  what  period  or  stage  of  his  pre- 
liminary proceedings  does  the  right  of  a  pre-emptor,  (or  other 
purchaser,)  after  he  has  received  his  patent,  relate  back,  in  a  con- 
test as  to  priority  with  another  person  claiming  title  under  the 
general  legislation  of  congress?     These  cases  simply  hold  that  a 

i37C'al.  475.  241  Cal.  489. 

(62) 


Ch.  3.]  APPROPRIATION    OF  WATERS.  §  41 

pre-emptor  who  has  merely  located  a  tract  of  the  public  land, 
occupied  it,  and  filed  the  preliminary  declaration,  but  has  not 
yet  paid  the  price,  obtains  no  vested  right  therein  against  the 
United  States;  and  that  congress  may,  therefore,  by  some  spe- 
cial statute  exercise  its  continuing  rights  of  ownership  over  such 
tract,  withdraw  it  from  entry,  location,  settlement,  or  sale  un- 
der the  operation  of  the  general  legislation,  and  may  sell  or  do- 
nate or  grant  such  tract  to  another  person,  without  regard  to  the 
inchoate  and  imperfect  right  to  it  of  the  pre-emptor.  The  con- 
flicting rights  of  two  persons  claiming  under  different  provis- 
ions of  the  general  statutes  of  congress  concerning  the  acquisition 
of  private  titles  or  interests  in  the  public  lands, — general  stat- 
utes which  were  dictated  by  and  carry  out  the  same  liberal 
policy, — present,  in  my  opinion,  another  question,  which,  I 
would  most  res  .octfully  but  earnestly  submit,  is  not  embraced 
within  nor  passed  upon  by  the  three  decisions  above  described, 
and  which  were  cited  and  relied  upon  in  Farley  v.  Spring  Valley 
M.  &  I.  Co.^  Those  cases  deal  with  the  interest  of  a  pre-emp- 
tor before  he  obtains  a  patent,  and  before  he  has  paid  the  price, 
not  with  his  interest  by  relation  after  the  patent  is  delivered. 
Even  that  inchoate  interest  is  not  a  mere  nullity.  While  it  is 
not,  in  its  imperfect  condition,  a  perfect  and  vested  right  to  the 
land  as  against  the  United  States,  the  supreme  court  pronounces 
it  to  be  an  existing  right  which  the  courts  will  protect  against 
third  persons  who  have  no  superior  or  equal  claims.  When 
are  the  claims  of  third  persons,  derived  from  other  portions  of 
the  general  system  of  legislation  concerning  the  acquisition  of 
private  ownership  in  the  public  lands,  superior  or  equal  to  the 
inchoate  right  of  the  pre-emptor?  It  seems  to  me  that  this  ques- 
tion is  carefully  distinguished  by  the  decisions  above  quoted, 
and  excepted  from  their  operation;  that  those  decisions  are  con- 

i58Cal.  143. 

(63) 


§   41  APPROPRIATION    OF   WATERS.  [Ch,  3. 

fined  to  ft  special  act  of  congress  directly  icithdrawing  specific 
portions  of  the  public  lands  from  the  operation  of  such  general 
legislation  as  the  pre-emption  laws,  and  do  not  touch  upon  the 
eflect  of  the  gciwal  statutes  dealing  with  the  public  lands,  and 
prescribing  the  modes  by  which  private  titles  or  interests  thereiri 
may  be  acquired. 

In  Hutton  v.  Frisbie,  a  case  which  arose  on  the  same  facts^ 
Chief  Justice  Sawyer,  delivering  the  opinion  of  the  court,  said:* 
"Nor  do  we  question  the  rule  adopted  in  Chotard  v.  Pope^  and 
Lytic  V,  State,^  to  the  eflect  that  when  a  party  is  authorized  by 
an  act  of  congress  generally  to  enter  'in  any  land-office,'  etc.,  'a 
quantity  of  land  not  exceeding,'  etc.,  he  must  be  limited  in  hi& 
selection  to  lands  subject  to  selection,  and  cannot  take  lands  al- 
ready sold,  or  reserved  from  sale,  or  upon  which  a  pre-emption, 
or  some  other  right,  has  attaclied  under  a  law  which  is  still  in 
force,  and  which  covers  and  protects  it.  The  rule  is  obviously 
sound.  It  cannot  for  a  moment  be  supposed  that  congress,  by 
such  general  act^,  contemplated  that  the  party  should  be  author- 
ized to  take  land  upon  which  other  {)arties  had  already  entered 
and  taken  steps  to  acquire  it,  and  were  diligently  pursuing  their 
rights  under  acts  still  in  force  with  reference  to  that  land,  or  that 
it  intended  in  this  general  way  to  repeal  such  acts.  The  two 
acts  in  such  cases  are  not  necessarily  inconsistent,  and  can  be  sa 
construed  in  the  mode  adopted  by  the  court  as  to  stand  to- 
gether; and  in  such  cases  it  is  obviously  the  duty  of  the  court 
so  to  construe  them.  But  such  is  not  the  case  with  the  act  we 
are  now  considering."  Again:  "The  policy  of  the  pre-emption 
laws  was  undoubtedly  beneficent.  They  were  intended  to  give 
those  who  were  pioneers  in  the  unsettled  wilds  of  the  public  do- 
main the  first  right  to  purchase  the  unoccupied  lands  which 
they  have  had  the  courage  and  hardihood  to  settle,  and  it  ivill 

1 37  Cal.  475,  485,  486.  2 12  Wheat.  587.  89  How.  333. 

(04) 


Ch.  3.]  APPROPRIATION  OF   WATERS.  §   41 

always  be  our  pleasure  as  well  as  duty  to  extend  to  all  such  the  utmost 
protection  justified  by  the  lauis  of  the  land.  But  this  beneficent  pol- 
icy has  no  element  in  Imrmony  with  the  jDrinciple  that  impelled 
men  to  rush  in  upon  the  improved  possessions,  and  avail  them- 
selves of  the  labor  of  their  neighbors,  under  the  condition  of 
things  connected  with  the  Suscol  rancho,  [i.  e.,  the  grant  to  A.] 
The  equities  which  lay  at  the  foundation  of  the  pre-emption  pol- 
icy were,  in  this  particular  instance,  not  with  those  who  entered 
upon  the  possessions  of  such  of  their  neighbors  as  were  honest 
purchasers;  but  they  were  all,  and  even  equities  of  a  much 
higher  obligation,  with  the  purchasers  in  good  faith,  who  were 
not  merely  pioneers,  but  also  parties  who  had  paid  for  their 
lands,  and  long  occupied  and  improved  them,  under  the  belief 
that  they  had  a  good  title;  and  congress  hastened  to  recognize 
and  give  effect  to  those  equities  by  passing  the  act  in  question." 
Again,  the  same  able  judge  says:  "The  difference  between  this 
case  and  those  of  Chotard  v.  Pope  and  Lytle  v.  State,  where 
the  parties  were  entitled  to  select  lands  from  a  much  larger 
portion  of  the  public  domain,  is  so  obvious  that  argument  can 
scarcely  make  it  appear  more  plain.  Where  an  act  author- 
izes a  party  to  enter  any  thousand  acres  of  land  he  may  select 
within  specified  exterior  boundaries  containing  one  hundred 
thousand  acres,  or  in  a  whole  state,  and  it  happens  that  the 
government  has  already  sold  a  given  tract  within  said  bounda- 
ries, or  a  pre-emption  right  in  favor  of  another  party  has  already 
attached  to  said  particular  tract  under  some  prior  law,  it  is  not 
for  a  moment  to  be  supposed  that  it  was  intended  to  permit  an 
entry  of  the  tract  of  land  so  sold,  or  upon  which  such  prior  right 
had  already  attached.  But  if  he  is  authorized  in  express  terms 
to  enter  the  very  same  specific  tract,  and  no  other,  before  sold 
or  upon  which  the  pre-emption  right  had  attached,  there  can 
be  no  doubt  as  to  the  intent  to  allow  the  entry  of  .that  specific 
tract,  whether  it  was  in  the  power  of  congress  to  give  effect  to 
POM. RIP. — 5  (65) 


§   41  APPROPRIATION    OF   WATERS.  [Ch.  3. 

tlmt  intent  or  not.  And  that  is  just  the  difference  between  the 
cases  cited  and  the  one  under  consideration."  The  opinion  of 
Mr.  Justice  Clifford  in  Frisbie  v.  Whitney^  contains  explanatory 
and  liniitin<5  language  to  the  same  general  effect. 

It  would  seem  that  language  could  not  be  more  plain  and 
pointed  than  that  of  the  foregoing  extracts,  to  show  that  the 
decisions  in  Ilutton  v.  Frisbie  and  Frisbie  v.  Whitney  were 
confined  to  the  operation  of  special  legislation  dealing  with 
specified  portions  of  the  public  domain,  and  had  no  reference 
whatever  to  the  effect  of  the  general  statutes  of  congress  forming 
parts  of  the  same  general  system,  nor  to  the  conflicting  rights 
of  priority  between  two  parties  claiming  under  the  different  and 
co-existhuj  provisions  of  these  general  statutes.  The  decision  in 
the  case  of  Western  Pac.  R.  R.  v.  Tevis^  was  also  based  upon 
upon  special  legislation  of  exactly  the  same  character. 

\^niere  A.  duly  locates  and  settles  upon  a  surveyed  tract  of 
the  public  land  bordering  upon  a  stream,  and  files  his  declara- 
tory statement  in  (say)  1874,  duly  completes  the  requirements 
of  the  statute  and  pays  the  price  in  1877,  and  receives  his  pat- 
ent from  the  government  in  1879;  and  B.  duly  posts  and  serves 
the  notices  of  his  appropriation  of  the  water  of  the  same  stream 
in  1875,  and  proceeds  with  reasonable  diligence  to  construct 
his  dams,  ditches,  and  other  necessary  works,  which  are  not 
completed,  however,  so  that  he  can  begin  the  actual  use  of  the 
water  until  1880, — the  appropriation  of  water  by  B.,  it  is  held, 
relates  back  to  the  time  of  his  preliminar}'  act  of  posting  and 
giving  notice  in  1875,  so  that  he  is  legally  in  the  same  posi- 
tion as  though  his  actual  use  of  the  water  had  begun  at  that 
time;  while  it  is  said  that  the  right  of  A.  as  a  patentee  shall 
only  relate  back  to  the  time  when  he  had  paid  up,  in  1877. 
And  thus,  although  A. 'a  initial  step  was  made  before  any  act 

19  Wall.  187.  S41Cal.  489. 

(66) 


Ch.  3.]  APPROPRIATION    OF   WATERS.  §   42 

whatever  done  by  B.,  and  his  legal  title  was  perfected  by  pat- 
ent before  B.'s  works  were  completed,  and  the  actual  use  of  the 
water  began,  yet  A.'s  rights  as  a  riparian  owner  on  the  stream 
are  said  to  be  subsequent  to  those  of  B.  to  appropriate  perhaps 
the  entire  waters  of  the  stream.  In  my  opinion,  there  is  noth- 
ing in  the  decisions  of  the  United  States  supreme  court,  nor  in 
those  of  the  California  supreme  court,  prior  to  the  case  of  Farley 
V.  Spring  Valley  M.  &  I.  Co.,  which  necessarily  establishes  or 
tends  to  establish  for  the  pre-emptor,  or  other  grantee  of  the 
United  States,  a  rule  so  different  from  that  which  governs  the 
appropriator  of  water;  and  there  is  nothing  in  the  general  stat- 
utes of  congress,  nor  in  the  policy  which  underlies  the  system, 
which  requires  such  a  discrimination  between  the  two  classes 
of  claimants.  The  notices  posted  and  given  by  the  appropria- 
tor of  water  clearly  do  not  confer  on  him  any  higher  equity  as 
a  bona  fide  purchaser;  since  the  actual  and  continuous  posse?- 
sion  required  of  the  pre-emptor  is  a  notice  of  his  prior  claim, — 
a  notice  of  the  very  highest  character.  I  have  dwelt  upon  this 
particular  topic  at  such  length  because  the  subject  seemed  to  be 
one  of  practical  importance;  the  discrimination  against  the  pre- 
emptor  or  other  private  grantee  of  the  United  States  seemed  to 
be  inequitable;  the  decisions  bearing  upon  it  are  very  few;  and 
possibly  the  court  may  be  called  upon  to  re-examine  the  ques- 
tion in  some  subsequent  case. 

§  42.     Riparian  rights  under  Mexican  grants. 

What  are  the  rights  of  a  private  riparian  proprietor,  who  ob- 
tains his  title  by  a  grant  from  the  Mexican  government,  guaran- 
tied and  protected  by  the  treaty  between  the  United  States  and 
Mexico,  and  finally  confirmed  to  him  in  the  proceedings  author- 
ized by  congress  for  the  purpose  of  carrying  into  effect  the  stip- 
ulations of  that  treaty?  We  see  no  reason  why  the  riparian 
rights  of  such  a  riparian  proprietor  should  differ  in  any  respect 

(67) 


§   42  APrROrRIATION   OF    WATERS.  [Ch.  3. 

from  those  held  by  any  other  riparian  proprietor  who  derives 
his  title  innnediately  or  mediately  from  the  United  States  by 
l)atent  or  otherwise.  All  the  doctrines  and  rules  of  the  law 
which  define  and  regulate  the  water-riglits  of  private  riparian 
projirietors  upon  innavifiable  streams  at  least,  even  if  not  upon 
navigable  streams,  belong  entirely  and  exclusively  to  the  jurisdic- 
tion and  domain  of  state  legislation.  Congress  has  no  power  to 
interfere  directly  or  indirectly  with  matters  of  this  kind;  any  at- 
tempt of  congress  to  control  them  by  legislation  would  be  wholly 
nugatory.  The  stipulations  of  the  treaty  with  Mexico  simply 
referred  to,  operated  upon,  and  protected  the  titles  of  those  pri- 
vate proprietors  who  held  tracts  of  land,  within  the  territory 
ceded  to  the  United  States,  under  grants  from  the  Mexican  gov- 
ernment. These  stipulations  say  in  substance  that  such  actual 
and  bona  fide  grantees  shall  continue  to  be  owners  of  their  re- 
spective tracts,  although  the  territory  has  passed  into  the  domain 
of  the  United  States;  and  that  their  right  of  ownership  shall  be 
respected  by  the  United  States  government. 

The  legislation  of  congress,  and  the  judicial  proceedings  in- 
stituted under  it,  were  intended  to  carry  into  effect  these  treaty 
stipulations,  and  they  operate  solely  upon  the  titles,  by  declar- 
ing, confirming,  and  establishing  the  private  ownership  of  the 
grantees  as  derived  from  the  Mexican  government,  the  original 
sovereign  proprietor.  The  treaty,  and  the  legislation  of  congress 
which  carries  it  into  effect,  are  of  course  binding,  not  only  upon 
the  federal  government,  but  also  upon  the  governments  of  all 
the  states  which  have  been  established  within  the  ceded  terri- 
tory, and  within  whose  boundaries  the  granted  lands  are  situ- 
ated. The  treaty  with  Mexico,  while  thus  securing  to  the  pri- 
vate proprietors  the  title  and  ownership  of  the  tracts  of  land  which 
had  been  granted  to  them  by  Mexico,  did  not  attempt  to  pro- 
vide that  this  ownership  should  be  governed  and  controlled  by 
the  rules  of  the  Mexican  law,  nor  by  any  other  rules  of  law  dif- 
(68) 


Ch.  3.]  APPROPRIATION    OF    WATERS.  §    42 

ferent  from  those  which  would  govern  and  control  all  private 
ownership  of  land  within  the  territorial  jurisdiction  of  the  United 
States,  or  within  the  jurisdiction  of  any  particular  states.  Even 
if  the  treaty  with  Mexico  had  expressly  stipulated,  not  only  that 
the  titles  of  private  persons  holding  under  Mexican  grants  should 
be  protected  and  should  continue  to  be  valid  and  perfect,  but 
also  that  the  ownership  of  such  lands,  when  situated  on  the 
banks  of  streams,  should  be  governed  and  regulated  bN'the  rules 
of  the  Mexican  laAv  concerning  water  and  other  riparian  rights, 
such  a  stipulation  would  be  completely  inoperative  and  void  as 
soon  as  the  territory  embracing  these  granted  lands  was  organ- 
ized into  a  state;  the  whole  subject-matter  would  belong  exclu- 
sively to  the  jurisdiction  of  the  state;  the  rules  concerning  ripa- 
rian rights  would  fall  exclusively  within  the  domain  of  the  state 
municipal  law, — whether  that  law  adopted  the  common-law  doc- 
trines, or  promulgated  other  rules  in  the  form  of  statutes.^  It 
seems  plain,  therefore,  that  the  riparian  rights  of  a  private  pro- 
prietor holding  by  a  Mexican  grant  duh'  confirmed  are  exactly 
the  same,  governed  by  the  same  rules,  as  those  held  and  enjo3'ed 
by  any  other  private  riparian  proprietor  within  the  state.  The 
source  of  his  title  can  make  no  difference  as  to  the  rights  of  prop- 
erty which  accompanv  and  flow  from  his  ownership.  The  ques- 
tion of  priority  between  such  a  grantee  and  a  person  who  has 
appropriated  the  waters  of  the  stream  ])efore  his  grant  was  con- 
firmed by  the  United  States  authorities,  must  depend,  we  ap- 
prehend, upon  the  legal  effect  given  to  the  confirmation.  Does 
the  confirmation  relate  back  to  the  date  of  the  treaty,  so  that 

^  This  principle,  and  the  authori-  Mr.  Justice  Field  in  delivering  the 

ties  which  support  it,  are  discussed  opinion  of  the  court  in  the  case  of 

by    Sawyer,    J.,   in  Woodruff    v.  Hagar  v.  Reclamation  Dist.   No. 

North    Bloomfield,    etc..     Co.,     9  lOS,  111  U.  S.  701,  s.  c.  4  Sup.  Ct. 

Sawy.  441,  .s.  c.  18  Fed.  Rep.  801.  Rep.  663. 
The  same  principle  is  discussed  by 

(69) 


§   43  APPROPRIATION    OF    WATERS.  [Ch.  3. 

the  f^rnntee  is  regarded  ad  deriving  his  title  directly  and  holding 
it  continuously  from  the  Mexican  government;  or  does  the  con- 
firmation operate  only  from  its  own  date,  so  that  the  grantee  is 
regarded  as  deriving  and  holding  his  title  immediately  and  di- 
rectly from  the  United  States,  in  pursuance  of  an  executory 
agreement  made  with  Mexico?  This  question  we  shall  not  ex- 
amine. 

§  43.     Summary  of  conclusions. 

The  conclusions  from  the  foregoing  discussion  may  be  briefly 
summed  up  as  follows:  While  a  natural  stream  or  lake  is  situ- 
ated on  the  public  lands  of  the  United  States,  within  the  limits 
of  a  state,  a  person  may,  under  the  customs  and  laws  of  a  state, 
and  the  legislation  of  congress,  acquire  by  prior  appropriation 
the  right  to  use  the  waters  thereof  for  mining,  agricultural,  and 
other  beneficial  purposes,  and  to  construct  and  maintain  ditches  \ 
and  reservoirs  over  and  upon  the  public  land;  which  right,  al-  , 
though  merely  possessory,  is  good  against  all  other  private  per- 
sons, and  is  made  by  statute  good  as  against  the  United  States 
and  its  subsequent  grantees. 

When  such  a  right  has  been  acquired  in  this  manner  by  prior 
appropriation,  subsequent  grantees  of  tracts  of  the  public  do- 
main bordering  on  the  same  stream  or  lake — pre-emptors,  home- 
stead settlers,  and  all  other  purchasers — take  and  hold  their 
titles  subject  thereto,  and  the  patents  issued  to  them  by  the  United 
States  government  must  expressly  except  or  reserve  all  sucb 
"existing  rights"  so  acquired  by  other  persons  in  pursuance  of 
the  customs  and  laws  of  the  state.  The  right  thus  excepted  or 
reserved  in  a  patent  must,  of  course,  be  an  "existing  right"  al- 
ready acquired  by  some  other  person.  When  a  grantee  of  the 
United  States  obtains  title  to  a  tract  of  the  public  land  border- 
ing upon  a  stream,  the  waters  of  which  have  not  hitherto  been 
(70; 


Ch.  3.]  APPROPRIATION    OF   WATERS.  §   43 

appropriated,  his  patent  is  not  subject  to  any  possible  apjaropri- 
ation  which  may  be  subsequently  made  by  another  party. ^ 

These  rules,  founded  upon  local  customs  and  laws,  and  rati- 
fied by  congressional  legislation,  are  confined  in  their  operation 
to  the  public  domain  of  the  United  States.^  If  tracts  of  public 
land  bordering  on  a  stream,  and  situated  within  a  state,  havecome 
into  the  private  ownership  of  purchasers  or  grantees  from  the 
United  States  before  any  appropriation  has  been  made  of  the 
water,  their  rights  as  riparian  proprietors  must  be  determined 
and  regulated  wholly  by  the  municipal  law  of  the  state  concern- 
ing that  subject-matter,  over  which  congress  has  no  power  what- 
ever to  legislate. 

Whenever  a  private  person,  as  pre-emptor,  homestead  settler, 
or  other  purchaser  or  grantee,  has  acquired  title  from  the  United 
States  to  a  tract  of  the  public  land  bordering  upon  a  stream  or 
lake  within  a  state,  any  subsequent  appropriation  of  the  waters 
thereof  by  another  party  is  subject  to  his  prior  rights  as  a  ripa- 
rian proprietor,  whatever  those  rights  may  be  under  the  mu- 
nicipal law  of  the  state;  and,  as  against  such  subsequent  appro- 
priator,  his  rights  as  riparian  proprietor  are  complete,  at  least 


'  [When  there  is  nothing  in  the  2  gee  Lobdell  v.  Simpson,  2  Nev. 

record  to   show   the  contrary,   it  274;  Lobdell  v.  Hall,  3  Nev.  507; 

must  be  presumed  that  the  lands  Ophir  Silver  M.  Co.  v.  Carpenter, 

through  which  the  stream  flowed  4  Nev:  534;  Robinson  v.  Imperial 

were  public  lands,   and  had  not  Silver  M.  Co.,  5  Nev.  44;  Covington 

passed  into  private  ownership  at  v.  Becker,  Id.  281;  Hobart  v.  Ford, 

the  time  of  the  appropriation.    Ly-  6  Nev.  77;  Van  Sickle  v.  Haines,  7 

tie  Creek  Water  Co.  v.  Perdew,  Nev.   249;   Barnes  v.   Sabron,    10 

(Cal.)  2  Pac.  Rep.  732.     Parties  be-  Nev.  217;  Shoemaker  v.  Hatch,  13 

ing  in  the  actual  possession  and  Nev.   261;    Dick    v.   Caldwell,    14 

use  of  a  water  privilege  have  a  Nev.  167;  Strait  v.  Brown,  16  Nev. 

good  prima  facie  right  to  it;  but,  317;  Cramer  v.   Randall,  2   Utah, 

when  other  parties  prove  a  prior  248;  Munro  v.  Ivie,  Id.535;  Fabian 

possession  and  use,  they  overcome  v.  Collins,  3  Mont.  215;  Burkley  v. 

this  prma /ac?e case.     Humphreys  Tieleke,  2  Mont.  59;  Caruthers  v. 

V.  McCall,  9  Cal.  59.]  Pemberton,  1  Mont.  Ill;  and  other 

cases  previously  cited. 

(71) 


§   43  APPROPRIATION    OF    WATKUS.  [Cll.  3. 

from  the  time  when  lie  has  duly  performed  all  of  the  statutory 
requirements,  including  payment  of  tlie  purchase  price,  if  nec- 
essary, so  as  to  entitle  him  to  a  patent,  and  not  merely  from  the 
time  of  issuing  a  patent;  even  if  his  rights  do  not  relate  back  to 
the  initiative  act  of  the  continuous  proceeding  by  which  his  title 
is  finally  perfected. 
(72) 


Ch.  4.]  HOW    APPROPRIATION    IS    EFP^ECTED.  §    45 

CHAPTER  IV. 

HOW  AN  APPROPRIATION  IS  EFFECTED. 

§  44.  Successive  appropriations. 

45.  Doctrines  which  control  the  appropriation. 

46.  The  methods  by  wliich  an  appropriation  is  effected. 

47.  Intent  to  apply  water  to  beneficial  use. 

48.  There  must  be  actual  diversion. 

49.  There  must  be  actual  use  of  water. 

50.  Physical  acts  constituting  appropriation. 

51.  Notice  of  intent  to  appropriate. 

52.  Reasonable  diligence  in  completion  of  works. 

53.  When  appropriation  is  complete. 

54.  Appropriation  relates  back  to  first  step. 

§  44.     Successive  appropriations. 

Having  thus  described  the  appropriation  of  waters  from  nat- 
ural streams  and  lakes  on  the  public  domain  of  the  United 
States,  I  shall  proceed  to  consider  the  sj^ecial  doctrines  which 
regulate  such  appropriation,  and  define  the  rights  of  appropri- 
ators.  It  may  be  stated  as  a  general  proposition,  in  this  con- 
nection, that,  when  there  have  been  several  successive  appro- 
priations of  water  from  the  same  stream,  each  appropriator  stands 
in  the  position  and  has  the  rights  of  a  prior  appropriator  towards 
all  others  whose  rights  have  been  acquired  subsequently  to  his 
own.  The  term  "prior  appropriator"  does  not,  therefore,  al- 
ways mean  the  person  who  is  absolutely  the  first  to  obtain  an 
exclusive  right  to  the  Avater  of  a  particular  stream. 

§  45.     Doctrines  which  control  the  appropriation. 

The  most  important  practical  doctrines  embraced  under  this 
head  may  be  regarded  as  having  been  definitely  settled  by  nu- 
merous decisions;  and  they  are  substantially  the  same  in  all  the 
Pacific  states  and  territories  where  this  theory  of  a  prior  exclu- 

(73) 


§   46  now    APPROPRIATION   IS   EFFECTED.  [Ch.  4. 

sivc  appropriation  of  water  prevails.  The  various  topics  to 
which  these  doctrines  relate,  and  which  require  any  discussion, 
are  the  foUowinj,':  The  methods  by  which  an  appropriation  is 
effected;  the  time  from  which  the  rights  under  an  appropria- 
tion become  vested;  the  property  and  other  rights  in  general  of 
the  prior  appropriator;  the  amountof  water  embraced  in  an  ap- 
propriation, or  the  extent  of  the  appropriation;  subsequent 
appropriation,  and  the  relations  between  successive  appropria- 
tors  of  the  same  stream;  abandonment  of  a  prior  appropriation. 
I  i)urpose  to  treat  of  these  matters  in  the  order  here  given. 

§  46.  The  methods  by  wliich  an  appropriation  is 
effected. 
It  should  be  carefully  observed  that  the  water-right  now  un- 
der discussion  may  be,  in  its  essential  nature,  merely  a  possess- 
ory riglit.  Its  acquisition  and  maintenance  are  not  essential 
incidents  of,  and  do  not  necessarily  depend  upon,  a  legal  title 
to  any  portion  of  the  public  lands  held  by  the  appropriator  un- 
der a  i)atent  or  other  conveyance  from  the  government.*  Nor 
is  it  necessary  that  the  appropriator  should  have  located  or  taken 
possession  of  any  tract  or  parcel  of  the  public  domain  bordering 
upon  the  stream  or  lake  from  which  the  appropriation  is  made. 
The  tract  or  claim  which  he  possesses,  and  on  or  at  which  the 
water  is  actually  used,  may  be  at  a  distance  from  such  stream  or 

^  ["One  who  locates  upon  public  Lira  as  against  trespassers.     If  he 

lands  with  a  view  of  appropriating  admits,  however,  that  he  is  not  the 

them  to  his  own  use  becomes  the  owner  of  the  soil,  and  the  fact  is 

absolute  owner  thereof  as  against  established  that   he  acquired  his 

everyone  b\itthe  government,  and  rights  subsequent  to  those  of  oth- 

is  entitled  to  all  the  privileges  and  ers,  then,  as  both  rest  for  their 

incidents  which  appertain  to  the  foundation    upon    appropriation, 

Boil,  subject  to  the  single  excep-  the  subsequent  locator  must  take 

lion    of    rights    antecedently    ac-  subject  to  the  rights  of  the  former, 

quired.     He  may  admit  that  he  is  &ndlhe  rule,  qui  prior  est  in  tempore 

not  the  owner  in  fee,  but  his  pos-  potior  est  in   jure,   must    apply.* 

session  will  be  sufficient  to  protect  Crandall  v.  Woods,  8  Cal.  143.] 

C74) 


Ch.  4.]  HOW    APPROPRIATION   IS   EFB'ECTED.  -§    47 

lake,  and  the  very  object  of  his  appropriation  may  be  to  conduct 
the  water  from  the  stream,  through  a  ditch  or  canal  across  the  in- 
tervening public  lands,  to  the  tract  which  he  possesses  as  a  mining 
claim,  a  farm,  or  a  mill;  or  even  to  sell  and  dispose  of  the  water, 
thus  conducted  through  the  canal,  to  other  parties,  who  use  it 
for  like  purposes  on  their  own  "claims"  or  tracts  of  land.  The 
true  "riparian  rights"  belonging  to  "riparian  proprietors,"  by 
virtue  of  their  actual  ownership  of  lands  bordering  upon  a  stream, 
will  be  considered  hereafter;  they  are  foreign  to  the  present  dis- 
cussion. 

§  47.    Intent  to  apply  ■water  to  beneficial  use. 

In  order  to  make  a  valid  appropriation  of  waters  upon  the 
public  domain,  and  to  obtain  an  exclusive  right  to  the  water 
thereby,  the  fundamental  doctrine  is  well  settled  that  the  ap- 
propriation must  be  made  with  a  bona  fide  present  design  or  in- 
tention of  applying  the  water  to  some  immediate  useful  or  ben- 
eficial purpose,  or  in  present  bona  fide  contemplation  of  a  future 
application  of  it  to  such  a  purpose,  by  the  parties  thus  appro- 
priating or  claiming.  The  purpose  may  be  mining,  milling, 
manufacturing,  irrigating,  agricultural,  horticultural,  domestic, 
or  otherwise;  but  there  must  be  some  such  actual,  positive,  ben- 
eficial purpose,  existing  at  the  time,  or  contemplated  in  the  fut- 
ure, as  the  object  for  which  the  water  is  to  be  utilized;  other- 
wise no  prior  and  exclusive  right  to  the  water  can  be  acquired, 
no  matter,  how  elaborate  and  complete  may  be  the  physical 
structures  by  which  the  attempted  appropriation  is  effected.' 


1  Weaver  v.  Eureka  Lake  Co.,  15  Gibson  v.  Puchta,  33Cal.  310;  Dick 

Cal.  271;  Maeris  v.  Bicknell,  7  Cal.  v.  Caldwell,  14  Nev.  167;  Dick  v. 

261;  Davis  v.  Gale,  33  Cal.  26;  Mc-  Bird,  Id.  161;  Cramer  v.  Randall, 

Kinney  v.  Smith,  21  Cal.  374;  Ort-  2  Utah,  248;  Munro  v.  Ivie,  Id.  535; 

man  v.  Dixon,  13  Cal.  33;  McDon-  Woolman   v.  Garringer,    1    Mont 

aid  V.  Bear  River,  etc.,  Co.,  Id.  220;  535. 
McDonald  v.  Askew,  29  Cal,  200; 

C75) 


§   48    '  now    APPKOPIUATION    IS    EFFECTED.  [Ch.   4. 

Under  this  rule,  an  apjiroiJi-iation  for  mere  purposes  of  specula- 
tion is  nugatory.'  And  a  diversion  of  water  solely  for  tlje  ob- 
ject of  drainage,  witliout  any  bona  fide  intention  of  its  present 
or  future  use  for  other  beneficial  purposes,  does  not  constitute 
a  valid  apjaopriation.''  Thus,  in  the  first  of  the  cases  cited  be- 
low, the  grantors  of  the  plaintiffs  had  constructed  a  ditch  for 
the  purpose  of  drainage  alone,  with  no  intention  of  appropriat- 
ing the  water  to  any  other  use,  and  the  defendants  had  subse- 
quently made  a  ditch  leading  from  the  same  stream  with  the 
intent  of  using  the  water  thus  diverted  for  a  beneficial  object. 
The  court  held  that  the  defendants,  although  later  in  time,  had 
gained  a  priority  of  appropriation  over  the  plaintiff's  grantors, 
and  over  all  persons  holding  under  them. 

§  48.     There  must  be  actual  diversion. 

Again,  since  no  exclusive  jjropcrty  is  or  can  be  acquired  in  the 
water  while  still  remaining  or  flowing  in  its  natural  condition, 
distinct  and  separate  from  the  property  in  the  land  over  which 
it  runs,'^  it  follows,  as  a  second  indispensable  requisite  of  the 
appropriation  under  consideration,  that  there  must  be  an  actual 
diver^iion  of  the  water  from  its  natural  channel  or  bed,  by  means 
of  a  ditch,  canal,  reservoir,  or  other  structure.*  For  this  pur- 
pose, however,  a  dry  ravine  or  gulcii  may  be  used  as  a  part  of 
a  ditch,  witli  the  same  efllect  as  though  the  structure  were  wholly 
artificial;^  and  a  "flume"  is  in  all  legal  respects  the  same  as  a 

1  Weaver  v.  Eureka   Lake  Co.,  public  and  unoccupied  land,  which 

15  Cal.  271.  conducted  water  to  a  point  in  a 

2 Maoris  v.  Bicknell,  7  Cal.  261;  can3on,  where  it  disappeared  un- 

McKiuuey  v.  Smith,  21    Cal.  374;  der  ground,  coming  to  the  surface 

Thomas  v.  Guiraud,  6  Colo.  530.  again  at  the  mouth  of  the  canyon, 

'Parks  Canal  &  M.  Co.  v.  Hoyt,  heUl,  that  he  was  entitled  to  be  pro- 

57  Cal.  -14;  Kidd  v.  Laird,  15  Cal.  tected  as  against  defendant,  who 

162.  dug  other  ditches  cutting  off  the 

*I)alton  V.  Bowker,  8  Nev.  190.  supply.     Keeney  v.  Carillo,  2  N. 

MIolTman  v.    Stone,   7  Cal.  46.  M.  480.] 
£Where  i)laintiff  built  a  ditch  upon 

C76j 


Ch.  4.]  HOW    APPROPRIATION    IS    EFFECTED.  §    49 

ditch  or  canal. ^  Not  only  may  the  appropriator  use  another 
natural  ravine  as  a  part  of  his  ditch  for  conducting  the  water 
which  has  been  diverted;  he  may  even  use  a  lower  portion  of 
the  same  natural  channel  from  which  the  water  was  taken,  for 
a  like  purpose.  If,  after  diverting  and  using  the  water,  the  ap- 
propriator returns  it  into  its  original  natural  channel,  without 
any  intent  to  "recapture"  it,  then,  as  will  be  shown  hereafter, 
he  abandons  it.  But  after  duly  diverting  the  water  at  some 
point,  he  may  turn  it  back  into  the  natural  channel  of  the 
stream  at  a  lower  point,  with  the  design  of  using  a  certain  por- 
tion of  such  channel  as  a  ditch,  and  of  "recapturing"  the  water, 
and  may  then  divert  the  same  quantity  originally  appropriated 
at  a  point  still  lower  down  the  stream.^ 

§  49.     There  must  be  actual  use  of  -water. 

[One  of  the  essential  elements  of  a  valid  appropriation  of  wa- 
ter is  the  actual  application  of  it  to  some  useful  industry.  This 
must  follow  and  consummate  the  intention.  To  acquire  a  right 
to  water  from  the  diversion  thereof,  one  must,  within  a  reason- 
able time,  employ  the  same  in  the  business  for  which  the  ap- 
propriation is  made.  What  shall  constitute  such  reasonable 
time  is  a  question  of  fact,  (as  will  appear  more  fully  hereafter,) 
depending  upon  the  circumstances  connected  with  each  partic- 
ular case.^] 

1  Ellison  V.  .Jackson  Water  Co.,  Colorado  constitution,) paramount 

12  Cal.  542.  to  the  right  acquired  by  a  subse- 

-  Richardson  v.  Kier,  37  Cal.  263;  quent  patentee  of  the  land.     This 

Butte  Canal,  etc.,  Co.  v.  Vaughn,  right  is  not  dependent  upon  the 

11  Cal.  143.  locus  of  the  application  of  the  wa- 

^Sieber  V.  Frink.  7  Colo.  148,  s.  0.  ter  to  the  beneficial  use.     Nothing 

2  Pac.  Rep.  901.    [In  Colorado,  the  in  the  statutes  is  susceptible  of  a 

first  appropriator  of  water  from  a  construction    which    would    vary 

natural  stream  for  a  beneficial  pur-  this    rule.     Coffin    v.     Left-Hand 

pose  has  a  right  to  the  extent  of  Ditch  Co.,  6  Colo.  443;  Thomas  v. 

his  appropriation,  (subject  only  to  Guiraud,  Id.  530.] 
the  qualifications  contained  in  the 

07) 


§  50  now  APrRorniATiox  is  effected.  [Ch.  4. 

§  50.     Physical  acts  constituting  appropriation. 

Tlie  I'undainental  doctrine  is  well  settled  that,  in  order  to  con- 
stitute a  valid  apiJropriation  of  the  kind  under  consideration, 
two  distinct  elements  are  absolutely  essential, — the  intent  to 
appropriate  water  from  a  particular  stream,  and  physical  acts 
by  which  this  intent  is  carried  into  effect,  without  abandon- 
ment, until  the  appropriation  is  completed.  Either  without 
the  other  is  insuflicient.  How  this  intent  may  be  signified, 
and  what  physical  acts  may  be  sufficient  to  carry  it  into  opera- 
tion, must  depend  somewhat  upon  the  natural  condition  and 
situation  of  the  locality,  and  other  circumstances  of  the  case. 
^'In  appropriating  unclaimed  water  on  the  public  land,  only 
such  acts  are  necessary,  and  such  evidence  of  the  appropriation 
required,  as  the  nature  of  the  case  and  the  face  of  the  country 
will  admit,  and  are  under  the  circumstances  and  at  the  time 
practicable.  For  example,  surveys,  notices,  blazing  of  trees, 
followed  by  actual  work  and  labor,  without  abandonment,  will 
in  every  case,  where  the  work  is  completed,  give  title  to  the 
water  against  subsequent  claimants.'"  It  follows,  therefore, 
that  a  notice  alone  of  an  intent  to  divert  or  to  use  the  water  of 
a  specified  stream  will  not  of  itself  constitute  an  appropriation 
thereof;^  nor,  on  the  other  hand,  will  the  mere  act  of  com- 

1  Kimball  v.  Gearhart,  12  Cal.  27;  The  erection  of  a  dam  across  a  nat- 

Osgood  V.  El  Dorado,  etc.,  Co.,  56  ural  water-course  is  an  actual  ap- 

Cal.  571;  Thompson  v.  Lee,  8  Cal.  propriation   of  the  water  at  that 

275;   Kelly  v.   jsatoma  W.  Co.,  6  point,  but  not  below  it.  although 

Cal.  107;  Weaver  v.  Eureka  Lake  the  water  flowing  over  the  dam  is 

Co.,  15  Cal.  271;  Davis  v.  Gale,  32  brought  back  into  the  water-course 

Cal.  26;  Robinson  v.  Imperial  Sil-  by  means  of  canals  made  bj'  the 

ver  M.  Co.,  5  Nev.  44;  Columbia  owners  of  the  dam.     Kelly  v.  Na- 

M.    Co.    V.  Holter,    1   Mont.    296.  toma  Water  Co.,  6  Cal.  105.] 

[The  true  test  of  appropriation  is  2 Thompson   v.  Lee,  8  Cal.  275; 

the  successful  application  of  the  Robinson  v.  Imperial  Silver  M. Co., 

water  to  the  beneficial  use;   the  5  Nev.  44;  Columbia  M.  Co.  v.  Hol- 

method    employed    is    immaterial,  ter,  1  Mont.  296. 
Thomas  v.  Guiraud,  6  Colo.  530. 

(78) 


Ch.  4.]  HOW    APPROPRIATION   IS    EFFECTED.  §    51 

meucing  or  digging  a  ditch,  even  with  the  intent  to  appropri- 
ate, be  sufficient  of  itself  to  give  an  exclusive  right  to  the  water 
of  a  stream,  without  some  notice  or  publication  of  the  intent.^ 
^'Public  land  is  appropriated  by  one  character  of  act;  water,  by 
another.  The  digging  of  a  ditch  on  public  land  is  not  an  ap- 
propriation of  land  sufficient  for  a  mill-site,  nor  is  the  mere  ap- 
propriation of  a  mill-site  an  appropriation  of  water  for  purposes 
of  milling."^ 

§  51.     Notice  of  intent  to  appropriate. 

While  a  notice  of  the  intent  to  appropriate  is  essential,  the 
mode  of  giving  it  depends  upon  the  circumstances  of  the  case, 
the  nature  and  situation  of  the  stream,  and  of  the  adjacent 
country.  The  usual  mode  seems  to  be  by  posting  written  or 
printed  notices  on  or  near  the  margin  of  the  stream  or  lake  at 
the  point  where  the  diversion  is  to  be  made,  and  perhaps  at 
other  points  along  the  projected  line  of  the  canal.*  No  particu- 
lar form  of  notice  is  prescribed.  All  that  is  required  is  that 
its  terms  shall  be  sufficient  to  put  a  reasonably  prudent  man 
upon  inquiry;*  and  to  this  end  its  language  must  be  liberally 
construed.^  If  an  appropriator,  after  duly  posting  a  notice, 
and  while  prosecuting  his  work  with  diligence,  posts  a  second 
notice  of  appropriation  of  the  same  water,  he  does  not  thereby 
abandon  his  claim  under  the  former  notice.^  After  a  notice  of 
the  intention  to  appropriate  the  water  is  given,  the  works  by 
which  the  appropriation  is  to  be  effected  must  be  actually  com- 
menced, and  must  then  be  prosecuted  with  reasonable  diligence 
unto  completion,  in  order  to  perfect  the  exclusive  right  to  the 


» Kimball  v.  Gearhart,  12  Cal.  27.  «  Kimball  v.  Gearhart,  12  Cal.  27. 

2 Robinson  v.  Imperial  Silver  M.  6  Osgood  v.  El  Dorado,  etc.,  Co., 

Co..  5  Nev.  44.  56  Cal.  571,  579. 

3  See  Osgood  v.  El  Dorado,  etc.,  6i(i, 
Co.,  56  Cal.  571. 

(79) 


§   52  HOW    APPROPniATION   IS   EFFECTED.  Ch.  4.} 

use  of  the  water  which  is  obtained  through  a  valid  appropria- 
tion.' 

§  52.     Reasonable  diligence  in  completion  of  works. 

Whether  the  work  has  been  begun  and  prosecuted  with  due- 
and  reasonable  diligence  is  a  question  of  fact  for  the  jury,  and 
their  verdict  will,  in  general,  be  conclusive.^  The  due  and 
reasonable  diligence  in  constructing  the  works  will  depend 
mainly  upon  tiie  physical  circumstances  of  the  locality,  upon  the 
nature  and  condition  of  the  region  through  which  the  ditch 
runs,  its  accessibility,  the  length  of  the  season  in  which  work  is 
practicable,  the  difficulty  of  procuring  adequate  supply  of  labor, 
the  extent  and  magnitude  of  the  works  themselves,  and  the  like, 
and  not  upon  the  personal  circumstances — especially  the  i)ccun- 
iary  circumstances — of  the  parties  themselves.^  In  Ophir  Sil- 
ver M.  Co.  V.  Carpenter  it  was  held  that  "diligence  in  the  pros- 
ecution of  work,  such  as  the  appropriation  of  running  water  by 
constructing  a  ditch  for  its  use,  does  not  require  unusual  or  ex- 
traordinary efforts,  but  only  such  constancy  and  steadiness  ot 
purpose  or  of  labor  as  is  usual  with  men  engaged  in  like  enter- 
prises, who  desire  a  speedy  accomplishment  of  their  designs, — 
such  assiduity  in  its  prosecution  as  will  manifest  a  bona  fide  in- 
tention to  complete  it  within  a  reasonable  time.  In  the  con- 
sideration whether  reasonable  diligence  has  been  exercised  in 
the  construction  of  a  ditch  necessary  to  the  appropriation  of 
water,  requiring  the  outlay  of  much  capital  and  the  labor  of 
many  men,  the  illness  of  the  appropriator  and  his  want  of  pe- 

^  Osgood  V.  El  Dorado,  etc..  Co.,  56  Cal.  571,  581;  Weaver  v.  Eureka. 
56  Cal.  571,  .581;  Parke  v.  Kilham,  Lake  Co.,  15  Cal.  271. 
8  Cal.  77;  Kimball  v.  Gearhart.  12  SQp^jjr  Silver  M.  Co.  v.  Carpen- 
Cal.  37;  Weaver  v.  Eureka  Lake  ter,  4  Nev.  534;  Weaver  v.  Eureka. 
Co.,  15  Cal.  271;  Ophir  Silver  M.  Lake  Co.,  15  Cal.  271;  Parke  v. 
Co.  v.  Carpenter,  4  Nev.  534;  Wool-  Kilham,  8  Cal.  77;  Kimball  v.  Gear- 
man  V.  Garringer,  1  Mont.  535.  hart,  12  Cal.  27;  Osgood  v.  El  Do- 

2 Osgood  V.  El  Dorado,  etc.,  Co.,  rado,  etc.,  Co.,  56  Cal.  571. 
(80) 


Ch.  4.]  HOW    APPROPRIATION   IS    EFFECTED.  §  53 

cuniary  means  to  prosecute  the  work,  being  matters  incident  to 
the  person  and  not  to  the  enterprise,  are  not  such  circumstances  as 
will  excuse  great  delay  in  the  work."^  In  Kimball  v.  Gearhart 
the  court  held:  "On  the  question  of  due  and  reasonable  dili- 
gence in  constructing  the  works,  the  jury  may  take  into  consid- 
eration the  circumstances  surrounding  the  parties  at  the  date  of 
the  appropriation,  such  as  the  nature  and  climate  of  the  country, 
and  the  difficulty  of  procuring  labor  and  materials.  *  *  * 
When  parties  begin  the  construction  of  a  ditch,  who  have  not 
at  the  time  the  pecuniary  means  to  complete  it  in  a  reasonable 
time,  and  they  project  the  work  and  claim  the  water  with  full 
knowledge  of  their  own  lack  of  means,  they  cannot  rely  on  such 
want  of  means  as  an  excuse  for  delay,  or  for  not  prosecuting  the 
work  to  completion  with  due  diligence."  In  Parke  v.  Kilham, 
8  Cal.  77,  it  was  also  held  that  "when  A.  stands  by  and  sees  B. 
constructing  a  ditch  at  great  expense,  for  the  purpose  of  appro- 
priating certain  water  to  his  own  use,  and  does  not  inform  B. 
of  his  own  prior  claim  to  such  water,  A.  and  his  vendees  are 
thereby  estopped  from  afterwards  setting  up  or  asserting  suck 
claim,  even  though  it  was  originally  the  prior  one." 

§  53.     When  appropriation  is  complete. 

The  appropriation  does  not  become  perfect  and  final  until  the 
works  are  completed,  so  that  the  actual  use  of  the  water  has  be- 
gun, or,  at  least,  so  that  its  actual  use  can  be  commenced.  Al- 
though, as  will  be  shown  hereafter,  if  the  works  are  constructed 
with  due  diligence,  the  appropriation  relates  back  to  the  date 
of  the  initial  step,  during  the  process  of  their  construction,  in 
the  interval  between  their  commencement  and  their  completion, 

^  [In  this  case  it  was  held  that  priation  of  running  water,  was  not 

the  doing  of  five  or  six  days'  work  such  diligence  in  prosecuting  the 

during  a  period  of  sixteen  months,  work  as  would  give  the  person  do- 

and  only  three  months'  labor  dur-  ing  it  a  superior  right  to  the  use  of 

ing  a  period  of  two   and  a  half  the  water.    Ophir  Silver  M.  Co.  v. 

years,  in  order  to  obtain  an  appro-  Carpenter,  4  Nev.  534.] 

POM. RIP. — 6  (81) 


§   53  HOW    APPROPRIATION    IS   EFFECTED.  [Ch.  4. 

Che  approjn-iator  acquires  no  vested,  exclusive  right  to  the  wa- 
ter of  the  stream,  ami  can  maintain  no  action  against  other  per- 
sons for  their  use  or  diversion  of  the  water. ^  Such  right  of  ac- 
tion only  arises  when  the  works  and  the  appropriation  are  com- 
pleted; although,  on  the  question  of  priority  between  the  ap- 
propriator  and  other  claimants,  his  appropriation  then  relates 
Hack  to  the  time  of  his  giving  notice.  In  Nevada  Co.,  etc.,  Co. 
▼.  Kidd^  these  conclusions  were  fully  established:  "A  court  of 
equity  will  not  restrain  the  diversion  of  water  until  the  plain- 
tifi"  is  in  a  condition  to  use  it.  While  the  plaintiff's  dam  and 
ditch  are  in  the  process  of  construction,  but  are  not  yet  ready 
to  actually  appropriate  or  use  the  water,  the  use  of  the  water  by 
other  persons  causes  no  injury  to  the  plaintiff,  and  gives  to  him 
no  cause  of  action  for  relief,  either  equitable  or  legal.  When  a 
party  claiming  water  is  constructing  a  dam  and  ditch,  until  he 
is  in  a  position  to  use  the  water,  his  right  to  it  does  not  exist 
in  such  a  sense  as  to  enable  him  to  maintain  an  action  against 
another  person,  either  to  recover  the  water  itself,  or  to  recover 
damages  for  its  diversion."  The  scope  and  effect  of  this  decis- 
ion should  not  be  misapprehended.  The  case  arose  from  an  at- 
tempted or  inchoate  appropriation  of  the  water  of  a  stream  on 
the  public  domain, — an  appropriation  of  the  kind  sanctioned 
by  congress  and  now  under  consideration.  Although  the  lan- 
guage in  some  portions  of  the  opinion  is  quite  general,  yet  it 
should,  of  course,  be  confined  to  and  limited  by  the  facts  of  the 
case  before  the  court.  The  rule  adopted  by  the  court  is  plainly 
confined  to  appropriators  of  water  on  the  public  lands  of  the 
United  States,  under  the  customs  and  laws  of  the  state  as  recog- 
nized by  the  congressional  legislation;  and  it  has  no  reference 

'  [One  who  has  by  appropriation  as    is  necessary  to    preserve  the 

the  prior  right  to  the  waters  of  a  flume  from  injury  during  construc- 

stream,  by  actually  commencing  tion.     Weaver  v.  Conger,  10  Cal. 

and  prosecuting  the  construction  233. J 

«f  a  ditch  and  flume,  has  certainly  237  Cal.  282. 
a  right  to  the  use  of  so  much  water 

(82) 


Ch.  4.]  HOW   APPROPRIATION   IS   EFFECTED.  §   54 

whatever  to  private  owners  who  have  obtained  titles  to  lands  on 
the  banks  of  streams,  nor  to  the  "riparian  rights"  of  such  pro- 
prietors. The  court  clearly  had  no  intention  of  holding  that 
owners  of  lands  bordering  on  a  stream  can  maintain  no  action 
against  other  persons  for  an  infringement  of  their  "riparian 
rights,"  unless  they  have  made  an  actual  appropriation  or  use 
of  the  water  by  means  of  a  completed  dam,  ditch,  or  other 
structure.  Such  a  ruling  would  be  in  direct  conflict  with  nu- 
merous dicta  and  decisions  by  the  same  court. 

§  64.     Appropriation  relates  back  to  first  step. 

It  has  been  shown  that  an  appropriation  does  not  become 
final  and  perfect  until  the  works,  by  which  the  water  is  diverted 
so  as  to  be  actually  used,  are  completed.  When,  however,  the 
right  has  thus  been  perfected,  the  doctrine  of  relation  may  oper- 
ate and  determine  the  question  of  priority  between  the  appro- 
priator  and  other  opposing  claimants  to  the  waters  of  the  same 
stream.  If  a  notice  of  the  intention  to  appropriate  was  prop- 
erly given,  and  the  work  of  constructing  the  dam,  ditch,  reser- 
voir, or  other  necessary  instrumentalities  of  the  diversion  was 
begun  within  a  reasonable  time,  and  was  prosecuted  with  due 
and  reasonable  diligence  until  their  completion,  then  the  exclu- 
sive right  thus  acquired  by  the  perfected  appropriation  will  re- 
late back  at  least  to  the  time  of  commencing  the  work,  even  if 
not  to  the  time  of  giving  the  notice.  If,  however,  the  work 
was  not  prosecuted  to  completion  with  due  and  reasonable  dili- 
gence,— in  other  words,  if  there  was  unreasonable  delay  in  its 
prosecution, — the  right  of  appropriation  accrues  and  dates  only 
from  the  time  when  the  works  were  finally  completed,  and  the 
diversion  of  the  water  actually  began. ^     Both  branches  of  the 

^Osgood  V.  El  Dorado,  etc.,  Co.,  27;  Ophir  Silver  M.  Co.  v.  Carpen 

56  Cal.  571;  Maerls  v.  Bicknell,  7  ter,  4  Nev.  534;  Woolman  v.  Gar- 

Cal.  261;  Parke  v.  Kilham,  8  Cal.  riuger,    1    Mont.     535;    Sieber    v. 

77;  Kimball  v.  Gearhart,   12  Cal.  Frink,  7  Colo.   148,  s.   c.   2  Pac. 

(83) 


§  .34  now  APruopRiATioN  is  effected.  [Ch.  4. 

rule  are  concisely  and  clearly  stated  in  the  case  of  Ophir  Silver 
M.  Co.  V.  Carpenter:  "In  the  appropriation  of  running  water 
for  the  purpose  of  acquiring  a  right  thereto,  if  any  work  is  nec- 
essary to  be  done  to  complete  the  appropriation,  the  law  gives  a 
reasonable  time  within  which  to  do  such  work;  and  protects  the 
riglils  during  such  time  by  relation  to  the  time  when  the  first  step 
ivas  taken.  Where  the  work  necessary  to  complete  an  appropria- 
tion of  running  water  is  not  prosecuted  with  diligence,  the  right 
to  the  use  of  the  water  does  not  relate  back  to  the  time  when  the 
first  step  was  taken  to  secure  it,  but  dates  from  the  time  when 
the  work  is  completed  or  the  appropriation  is  fully  perfected." 
What  constitutes  due  diligence  in  constructing  the  works  was 
discussed  under  the  preceding  head.  This  doctrine  of  rela- 
tion is  practically  important  in  determining  the  priority  of  the 
appropriation  as  against  subsequent  appropriators  and  claimants 
of  water  from  the  same  stream,  and  as  against  subsequent  grant- 
ees or  purchasers  of  lands  on  its  banks. ^ 

Rep.  901;  Irwin  v.  Strait,  18  Nev.  The  supreme  court  uses  the  lan- 

436,  s.  0.   4  Pac.    Rep.   1215.     Al-  guage,  "the  first  step  was  taken. " 

though   the    cases    generally    say  i  [In  Irwin  v.  Strait.  18  Nev.  436, 

that  the  right  relates  back  to  the  s.  c.  4  Pac.  Rep.  1215,  it  is  said: 

time  of  co7nmencin(/ the  work,  there  "In  determining  the  question  of 

would  seem  to  be  no  reason  why  the  time  when  a  right  to  water  by 

the    relation    should    not    extend  appropriation  commences,  the  law 

back  to  the  time  of  giving  the  no-  does  not  restrict  the  appropriator 

tice.     The  notice  is  the  essential,  to  the  date  of  his  use  of  the  water; 

initial  step  in  one  entire  continu-  but,  applying  the  doctrine  of  rela- 

ous  proceeding,  and  the  due  dili-  tion,  fixes  it  as  of  the  time  when  he 

gence  must  be  used  from  the  date  begins  the  dam  or  ditch  or  flume, 

of  giving  the  notice.     Is  it  possible  or  other  appliance  by  means  of 

that  the  rights  of  another  claimant  which    the    appropriation    is    ef- 

could  intervene  between  the  date  fected,  provided  the  enterprise  is 

of  the  first  appropriator's  notice  prosecuted  with  reasonable   dili- 

and  the  time  when  his  work  is  act-  gence.  "    This      language     would 

ually  begun,  no  matter  how  short  seem    to  exclude  the  theory  that 

the  interval?    Yet  tliis result  must  the    doctrine    of    relation    would 

be^^os.fi'^fe  if  theright  of  appropri-  carry  the   appropriation   back  to 

ation  relates  back  only  to  the  time  the  time  of  giving  notice.] 
of    actually  beginning  the  work. 

(84) 


Ch.  5.]  NATURE    AND   EXTENT   OF   RIGHT.  §  56 


CHAPTER  V. 

NATUEE  AND  EXTENT  OF  THE    RIGHT   ACQUIRED   BY 
APPROPRIATION. 

I.    Natuke  op  the  Right  Acquired. 

§  55.     Appropriator's  right  begins  at  head  of  his  ditch. 

56.  Nature  and  extent  of  right  depends  on  purpose  of  appro- 

priation. 

57.  Property  in  ditches  and  canals. 

58.  Sale  of  ditches  and  water-rights. 

59.  Tenancy  in  common. 

60.  Right  to  natural  flow  of  water  at  head  of  ditch. 

61.  What  are  streams  subject  to  appropriation. 

62.  Definition  and  characteristics  of  a  water-course. 

63.  Percolating  and  subterraneous  waters. 

64.  Right  to  exclusive  use  of  water. 

65.  Appropriator  may  change  place  or  manner  of  uao. 

66.  Remedies  for  interference  with  these  rights. 

67.  Injuries  to  ditches. 

68.  Remedies  for  unlawful  diversion. 

69.  Equitable  jurisdiction. 

70.  Deterioration  of  quality  of  water. 

n.    Liability  for  Damages  Caused  by  Ditche3. 
§  71.     Various  kinds  of  injuries. 

72.  Damages  caused  by  breaking  or  overflow. 

73.  Proper  measure  of  care  required. 

74.  Injuries  from  intentional  trespasses. 

75.  Damages  from  mode  of  construction  or  operation  of 

works. 

76.  Discharge  of  raining  debris. 

77.  Effects  of  hydraulic  mining  a  public  nuisance. 

78.  Impounding  dams. 

in.    Extent  of  the  Right  Acquired. 

§  79.    Amount  of  water  which  the  appropriator  is  entitled  to 
use. 

80.  Carrying  capacity  of  ditch. 

81.  True  capacity  of  ditch  the  proper  measure. 
rV.    Successive  Appropriators. 

§  82.     Rights  of  subsequent  appropriator. 
83.    Successive  appropriations. 

(85) 


§  55  NATURE    AND    EXTENT    OF    RIGHT.  [Ch.  5. 

rV.    Successive  ArruoniiATORS— Continued. 
g  84.     Periodical  appro|)ri}itions. 

85.  Conditions  under  which  subsequent  appropriation  may 

be  effected. 

86.  Division  of  increase  in  stream. 

87.  Wrongful  diversion  of  springs. 

V.    Abandonment  of  Rioht. 

g  88.     General  doctrine  of  abandonment. 

89.  Methods  of  abandonment. 

90.  Abandonment  by  adverse  user. 

VL    Review  of  the  System. 

§  91.    This  system  as  a  whole. 

92.  Defects  of  the  system. 

93.  Presumption  that  stream  was  on  public  land. 

I.     Nature  of  the  Right  Acquired. 

§  55.     Appropriator's  right    begins   at  head   of  his 
ditch. 

The  doctrine  is  settled  by  repeated  decisions  that  an  appro- 
priator  who  has  constructed  a  ditch,  and  is  thereby  diverting 
the  water  of  a  stream,  or  any  portion  of  it,  for  some  beneficial 
purpose,  obtains  and  has  no  property  whatever  in  the  water  of 
such  stream  while  it  is  flowing  in  its  natural  channel  or  bed, 
and  before  it  reaches  the  "head"  or  commencement  of  the  ditch 
where  the  diversion  begins.  It  has  even  been  questioned  whether 
his  right  to  the  water  after  diversion,  and  while  flowing  through 
the  ditch,  is  really  a  "property,"  or  only  an  exclusive  right  of 
use;  but  it  is  settled  beyond  all  question  that  he  has  no  prop- 
erty in  the  water  of  a  natural  stream,  flowing  in  its  natural  cur- 
rent and  channel,  before  the  diversion  into  his  ditch  or  other 
structure  takes  place.  He  can  maintain  no  actions  based  upon 
such  property.  In  fact,  private  property  in  the  running  waters 
of  a  natural  stream,  flowing  in  its  natural  channel,  cannot  be 
acquired,  separate  and  distinct  from  a  property  in  the  land 
(86) 


Ch.  5.]  NATURE    AND   EXTENT    OF    RIGHT.  §    58 

through  and  over  which  the  stream  runs.^  In  Parks  Canal  &  M. 
Co.  V.  Hoyt^  it  was  held  that  the  water  flowing  in  the  stream 
above  the  head  of  the  appropriator's  ditch  is  realty,  a  part  of 
the  land,  and  does  not  become  in  any  sense  his  propert}'  until 
it  passes  into  his  control  in  his  ditch  or  other  works.  He  caor 
not,  therefore,  maintain  an  action  upon  an  implied  contract,  as 
for  the  price  of  personal  property  sold,  against  a  person  who  has 
wrongfully  diverted  the  water  from  the  stream  above  the  head 
of  his  ditch.  His  legal  remedy  for  such  an  injury  is  by  an  ac- 
tion on  the  case  to  recover  damages  for  the  tort.  In  Los  An- 
geles v.  Baldwin,^  although  it  appeared  that  the  city  had,  bj 
prescription  or  otherwise,  acquired  the  right  to  appropriate  and 
use  the  entire  water  of  the  Los  Angeles  river,  yet  it  was  held 
that  the  city  did  not  own  the  corpus  of  the  water  while  flowing 
in  the  river.  In  Kidd  v.  Laird*  the  general  doctrine  was  laid 
down  that  running  water,  while  flowing  in  its  natural  manner 
in  the  natural  channel  of  a  stream,  cannot  be  made  the  subject 
of  private  ownership.  A  right  may  be  acquired  to  the  use  of 
the  water  in  such  a  condition,  which  will  be  protected  as  though 
it  were  a  right  of  property;  but  this  right  is  not  a  special  prop- 
erty in  the  water  itself, — in  the  corpus  of  the  flowing  water. 

§  56.     Nature  and  extent  of  right  depends  on  pur- 
pose of  appropriation. 

The  nature  and  extent  of  the  right  acquired  in  the  water  after 
its  diversion,  while  under  the  control  of  the  appropriator,  ia 
Lis  ditch,  canal,  reservoir,  or  other  structure,  must  depend,  I 
think,  upon  the  purpose  for  which  the  appropriation  is  made. 

'Lower  Kings  River  W.  Co.  v.  Donald  v.  Askew,  29  Cal.  200;  Kidi 

Kings  River,  etc.,  Co.,  60  Cal.  408;  v.  Laird,  15   Cal.    161;   Ortman  v. 

Parks  Canal  &  M.   Co.   v.  Hoy^  Dixon,  13  Cal.  33. 

67  Cal.  44;  City  of  Los  Angeles  v.  257  Cal.  44. 

Baldwin,  53  Cal.  469;  Nevada  Co.,  953  Cal.  469. 

etc.,  Co.  V.  Kidd,  37  Cal.  283;  Mc-  *lb  Cal.  161. 

(87) 


§   67  NATURE    AND    EXTENT  OF   RIGnT.  [Ch.  5. 

Where  the  appro] )riation  is  made  for  purpose  of  irrigation,  or 
agriculture,  or  municipal  uses,  or  mining,  or  for  sale  to  others 
to  be  used  by  them  in  any  of  these  modes,  where  the  use  wholly 
or  largely  conmts  in  the  consumption,  it  would  seem  that  the  ap- 
propriator  acquired  a  liigher  right,  a  right  more  nearly  equiva- 
lent to  absolute  property  or  ownership,  than  in  cases  where  the 
appropriation  is  made  simply  for  the  purpose  of  milling,  or  of 
proi)elling  machinery  of  any  kind.  In  the  latter  case  the  use 
is  not  a  consumption,  and  the  water  may  be  returned  to  its  nat- 
ural channel,  after  the  use,  without  substantial  diminution  in 
quantity.  Decisions  concerning  milling  do  not,  therefore,  in 
my  opinion,  furnish  a  necessary  rule  for  other  kinds  and  pur- 
poses of  appropriation.  In  Ortman  v.  Dixon  ^  the  court  said, 
concerning  one  who  had  appropriated  water  for  a  mill :  "  Whether 
A.,  by  erecting  a  mill  and  dam,  becomes  entitled  to  the  water 
in  specie,  or  whether  he  is  entitled  to  anything  more  than  the 
use  of  the  water  as  a  motive  power;  whether  there  may  not  be 
an  appropriation  of  the  mere  use,  as  well  as  an  appropriation 
of  the  water  itself,  the  corpus  of  the  water,  for  sale, — are  ques- 
tions which  need  not  be  and  are  not  now  decided."  In  the  later 
case  of  McDonald  v.  Askew ^  the  court  laid  down  a  more  defi- 
nite rule  on  this  particular  matter:  "  One  who  locates  ona  stream, 
and  appropriates  the  water  for  a  mill  or  other  machinery,  does 
not  obtain  a  property  in  the  water  as  such,  but  only  a  right  to  the 
momentum  of  its  fall  at  that  place,  and  to  the  flow  of  the  water 
in  its  natural  channel." 

§  57.     Property  in  ditches  and  canals. 

There  is,  of  course,  a  plain  distinction  between  the  appropri- 
ator's  right  to  the  water  which  he  diverts,  and  his  right  to  the 
canal,  ditch,  reservoir,  or  other  structure  through  which  the 

»13  Cal.  33.  229  Cal.  200. 

C88) 


Ch.  5.]  NATURE    AND   EXTENT   OF    RIGHT.  §   58 

water  is  conveyed.  A  ditch  or  canal  itself,  used  for  conveying 
the  water  to  a  mine  or  elsewhere,  is  not  a  mere  easement  or  incor- 
poreal hereditament;  it  is  land.^  If,  therefore,  a  ditch  runs  from 
a  stream  to  a  mining  "claim,"  and  belongs  to  the  owner  of  the 
mine,  who  uses  a  portion  of  its  water  in  working  his  mining 
claim,  it  does  not  follow  that  the  ditch  is  an  appurtenant  of  the 
mining  claim.  And  if  the  owner  of  a  mining  claim  purchases 
a  water  ditch,  "and  the  water-rights  thereto  appertaining,"  this 
purchase  does  not  of  itself  constitute  the  ditch  and  water-rights 
appurtenances  of  the  mining  claim. ^ 

§  58.     Sale  of  ditches  and  -water  rights. 

The  exclusive  right  to  divert  and  use  the  water  of  a  stream 
acquired  by  appropriation,  as  well  as  the  ditch  or  other  struct- 
ure through  which  the  diversion  is  effected,  may  be  transferred 
and  conveyed  like  other  property  or  rights  analogous  to  prop- 
erty. If  a  person  having  a  possessory  right  to  a  parcel  of  land 
on  a  stream  has  erected  a  mill  thereon,  and  has  acquired  a  right 
to  the  water  of  the  stream  for  his  mill,  a  valid  sale  and  convey- 
ance of  such  real  property  transfers  the  water-right  also  to  the 
vendee.^  While  a  ditch  or  other  similar  structure  for  appropri- 
ating and  diverting  water  may  be  sold,  the  sale  and  conveyance 
must  be  by  a  written  instrument, — a  deed, — as  in  the  case  of 
other  real  estate.  A  mere  verbal  sale  or  transfer  would  be  nu- 
gatory.*    A  person  who  enters  into  possession  of  such  a  ditch, 


iReed  v.  Spicer,  27  Cal.  61.  law,  when  fortified  by  possession. 

2  Quirk  V.  Falk,  47  Cal.  453.  Ortman  v.  Dixon,  13  Cal.  33.     A 

^McDonald  v.  Bear  River,  etc.,  co-ownerof  a  water-right, acquired 

Co.,  13  Cal.  220.  by  appropriation,  can  convey  his 

4  Smith  V.  O'Hara,  43  Cal.  371;  own  interest,  but  cannot  convey 
Lobdell  V.  Hall,  8  Nev.  507.  [A  so  as  to  injuriously  affect  his  co- 
water-right  can  be  convej'ed  by  a  tenant's  right.  Henderson  v. 
bill  of  sale  not  under  seal.  It  cer-  Nicholas,  67  Cal.  152,  s.  c.  7  Pac. 
tainly  passes  the  equitable  title.  Rep.  412.] 
and  that  is  sufficient,  under  our 

(89) 


§   59  NATURE    AND   EXTENT   OF    RIGHT.  [Ch.  5, 

umler  a  mere  verbal  sale  to  himself,  does  not  succeed  to  any 
rights  of  priority  held  by  the  vendor,  so  as  to  obtain  the  benefit 
of  the  vendor's  prior  appropriation;  he  must  date  his  own  ap- 
propriation, as  against  all  other  opposing  claimants,  from  the 
time  when  he  enters  into  possession.^  In  a  very  recent  decision 
by  the  supreme  court  of  Nevada,  this  same  rule  was  declared  in 
the  most  general  form:  "Where,  in  a  contest  concerning  prior- 
ity, a  party  claiming  a  right  to  water  by  appropriation  fails  to 
conned  himself  in  interest  with  those  who  first  appropriated  and 
used  the  waters  of  a  stream,  his  own  appropriation  of  the  water 
must  be  treated  as  the  inception  of  his  right;"  or,  in  other 
words,  his  right  of  appropriation  must  be  dated  from  the  time 
when  he  himself  began  to  use  the  waters;  he  cannot  link  his  own 
use  onto  that  of  the  former  occupants,  and  thus  claim  to  be  a  suc- 
cessor to  their  prior  rights.  Their  prior  appropriation  is  virtu- 
ally abandoned.^ 

§  59.     Tenancy  in  common. 

Wherever  ditches  or  other  structures  for  diverting  and  appro- 
priating water  belong  to  two  or  more  proprietors,  such  owners 
are,  in  the  absence  of  special  agreements  to  the  contrary,  ten- 
ants in  common  of  the  ditch,  and  of  the  water-rights  connected 
therewith,  and  their  proprietary  rights  are  governed  by  the  rules 
of  law  regulating  tenancy  in  common.^  [Rut  persons  claiming 
rights  in  the  waters  of  a  stream,  derived  from  the  same  original 
proprietors,  are  not  necessarily  tenants  in  common;  and  a  con- 
vention inter  sese  of  the  owners  as  to  the  use  of  all  the  waters  ap- 
propriated, by  or  under  which  the  water  is  to  be  used  forrecur- 


» Smith  V.  O'Hara,  snpra.  laid  down  in  Smith  v.  O'Hara  is  a 

2Chiatovich  v.  Davis,    17  Nev.  particular  instance. 

133.     This  decision  plainly  formu-  » Bradley  v.  Harkness,  26  Cal.  69. 

lates  a  general  rule,  of  which  that 

(90) 


Ch.  5.] 


NATURE    AND   EXTENT    OF   RIGHT. 


§  59 


ring  periods  of  time  by  each,  will  not  make  them  tenants  in 
1 


common. 

Of  tenants  in  comm 
occupy  the  whole  of  t 
thereof,  and  may  recov 
and  an  arrangement  as" 
among  the  co-tenai 
venience,  and  is  no\t 
third  party  by  on 
principle  was  laid  op 
that  the  waters  were 
appropriate  them 
ceive  that  it  maki 
mon  of  the  wate 
seized  per  my  and 


.V 


[each  has  a  right  to  enter  upon  and 
common  property,  and  every  part 
the  whole  thereof  from  a  trespasser- 
periods  for  the  use  of  the  water, 
3ts  threm  Vily,  and  is  for  their  con- 
tuse tq  an  action  of  trespass  against  a 
jo-ienants.  In  the  case  where  this 
liorntoni  J.,  observed:  "It  is  said 
priited  severally  by  those  who  did 
Coii^ede  tiis  to/ be  so,  and  we  do  not  per- 
iin^ere  ice./f  If  they  are  tenants  in  com- 
yim  aAijcl  each  of  them  are  tenants 
entitled  to  the  possession  of 
the  whole.  This  must-Be  sd^NSefeajise  no  one  of  them  can  cer- 
tainly state  which  part  ofvtheiii^s  his  own.     They  hold  by 


Pi 


01  all 


titles  l)e  distinct.     If  this 

r  iio  longer  exists.^     *     *     * 

oldiiig  the  estate  as  joint  tenants 

i  ii^  the  result.     Each  can  re- 

>8m-y  steps  to  protect  the  whole 


unity  of  possession,  tho 
unity  is  destr 
Whether  joint  app 
or  tenants  in  commo^i 
cover  the  whole,  or  ta 
against  the  acts  of  a 

Further,  a  court  of  equi^^Jnas  power  to  ascertain  and  deter- 
mine the  extent  of  the  rights  of  property  in  water  flowing  in  a 
natural  water-course,  acquired  by  persons  who  hold  and  are  en- 
titled to  them,  and  to  regulate,  between  or  among  them,  the 
use  in  the  flow  of  the  water  in  such  a  way  as  to  maintain  equal- 
ity of  rights  in  the  enjoyment  of  the  common  property.*    Hence, 


^Lytle  Creek  Water  Co.  v.  Per- 
dew,  (Cal.)  2  Pac.  Rep.  732. 

2  Citing  2  Bl.  Comm.  191,  192; 
Carpentier  v.  Webster,  27  Cal.  524. 


SLytle  Creek  Water  Co.  v.  Per- 
dew,  (Cal.)  4  Pac.  Rep.  426. 

^Frey  v.  Lowden,  (Cal.)  11  Pac 
Rep.  838. 

(91) 


§  GO  NATURE  AND  EXTENT  OF  RIGHT.         [Ch.  5. 

where  one  of  two  or  more  co-owners,  in  the  use  of  water  of  a 
stream  appropriated  by  them  for  beneficial  purposes,  diverts  tor 
use  a  greater  quantity  of  water  than  of  right  belongs  to  him,  so 
as  to  materially  diminish  the  quantity  to  which  the  others  are 
entitled,  such  parties  are  entitled  to  enjoin  the  wrong-doer  from 
diverting  the  water  to  their  injury.'] 

§  60.     Right  to  natural  flow  of  water  at  head   of 
ditch. 

Although  the  appropriator  has  no  property  in  the  water  of 
the  stream  flowing  in  its  natural  channel  above  his  point  of  di- 
version, yet  he  acquires  a  most  important  right  over  or  with  re- 
spect to  such  water.  This  general  right  over  the  stream,  of  the 
party  who  has  perfected  a  prior  appropriation,  is  that  the  wa- 
ter of  the  stream  should  continue  to  flow  in  its  usual  manner, 
through  the  natural  channel  or  bed  of  the  stream,  down  to  the 
head  of  his  ditch,  or  to  the  point  where  his  own  actual  domin- 
ion over  it  commences,  to  the  extent  or  amount  of  his  appropri- 
ation, without  diversion  or  material  interruption.^  In  a  recent 
decision  the  court  used  the  following  language  descriptive  of 
this  right:  "The  plaintiff's  right  to  have  the  water  flow  in  the 
river  to  tlie  head  of  his  ditch  is  an  incorporeal  hereditament 
appurtenant  to  his  [artificial]  water-course,  [i.  6.,  his  ditch.] 
Granting  that  the  plaintiff'  does  not  own  the  corpus  of  the  water 
until  it  shall  entei*  his  ditch,  yet  the  right  to  have  it  flow  into  the 
diM  .appertains  to  the  ditch. "^  In  another  case  a  ditch,  con- 
veying water  for  purpose  of  sale  to  miners,  took  its  water  from 

iLorenz  v.  Jacobs,  (Cal.)  3  Pac.  Cal.  200;  Phoenix  W.  Co.v.  Fletch- 

Rep.  6.54;  citing  Story,  Eq.  Jur.  §  er.  23  Cal.  481;  Natoma  W.  &  M. 

«27.  Co.   V.  McCoy.   Id.   490;   Kidd  v. 

2Lower  Kings  River,  etc..  Co.  v.  Laird.  15  Cal.  161;  Barnes  v.  Sa- 

Kings  River,  etc.,  Co..  60  Cal.  408;  bron,  10  Nev.  217. 

Parks  Canal  &  M.  Co.  v  Hoyt,  57  ^Lower  Kings  River,  etc..  Co.  v. 

Cal.  44;  Reynolds  v.  Hosmer,  51  Kings  River,  etc.,  Co.,  60  Cal.  408. 
Cal.  20");  McDonald  v.  Askew,  29 

(92) 


Ch.  5.]  NATURE    AND   EXTENT    OF    RIGHT.  §    61 

a  stream  near  its  head  in  the  mountains,  and  thence  ran  for  a 
distance  of  twenty-four  miles,  the  water  flowing  through  its  en- 
.tire  length.  The  title  to  the  upper  half  of  the  ditch  was  vested 
in  A.,  and  that  of  the  lower  half  in  B.  A.  was  held  to  be  en- 
titled to  the  exclusive  use  of  the  water  from  the  stream  at  the 
head  of  the  ditch. ^  In  Phoenix  Water  Co.  v.  Fletcher-  it  was 
held  that  the  prior  appropriator  of  a  stream  on  the  public  lands, 
for  mining  purposes,  has  a  right  to  have  the  water  flow  down 
the  stream,  above  the  point  of  his  appropriation,  without  inter- 
ruption or  diminution  in  quantity. 

§  61.     What  are  streams  subject  to  appropriation^ 

The  question  here  arises,  what  is  a  "stream"  which  may  thils 
be  appropriated?  I  do  not  purpose  to  enter  into  any  full  dis- 
cussion of  this  question,  which  may  be  regarded  as  rather  spec- 
ulative than  practical  throughout  these  Pacific  communities.  It 
is  sufficient  to  say  that  there  must  be  an  actual,  natural  stream, 
with  defined  banks,  bed,  channel,  and  current,  as  contradistin- 
guished from  a  mere  occasional  torrent  or  flow  of  surface  water 
from  rains  or  melting  snow,  through  a  hollow  or  depression  in 
the  surface  of  the  soil.  The  essential  nature  of  a  "  stream  "  which 
can  be  appropriated  was  briefly  but  accurately  described  by  the 
supreme  court  of  Nevada  in  a  leading  case:^  "To  maintain  the 
right  to  a  water-course,  it  must  be  made  to  appear  that  the  wa- 
ter usually  flows  therein  in  a  certain  direction,  and  by  a  regular 
channel  with  banks  or  sides.  It  need  not  be  shown  to  flow  con- 
tinually, and  it  may  at  times  be  dry,  but  it  must  have  a  well- 
defined  and  substantial  existence."  It  would  plainly  be  im- 
practicable to  require,  as  an  essential  element  of  a  "stream"  in 
these  Pacific  states  and  territories,  that  the  flow  of  water  should 
be  continuous,  uninterrupted,  and  perennial,  during  the  entire 

1  Reynolds  v.   Hosmer,  51   Cal.         223  Cal.  481. 
205.  8  Barnes  v.  Sabron.  10  Nev.  217. 

(93) 


§  02  NATURE  AND  EXTENT  OF  RIGHT.         [Ch.  5. 

ye;ir,  and  from  year  to  year.  It  is  well  known  that  some  of 
the  most  important  and  well-defined  streams  in  these  regions 
become  dry  thmugljout  tlie  whole  or  a  considerable  portion  of 
their  lengths  during  certain  seasons  of  each  year.  It  is,  per- 
hai)s,  more  correct  to  say  that  their  waters  sink  beneath  their 
beds,  and  flow  beneath  the  surface  instead  of  in  their  channels 
on  the  surface.  All  these  streams,  nevertheless,  have  well-de- 
fined beds,  channels,  banks,  and  currents,  and  are  in  every  re- 
spect natural  "streams." 

§  62.     Definition    and   characteristics    of   a    "water- 
course. 

[In  order  to  constitute  a  water-course,  there  must  be  a  defined  1 
channel,  banks,  and  water  usually  flowing  in  a  particular  direc- | 
tion.     It  need  not  flow  constantly;  it  may  at  times  be  dry;  but/ 
the  source,  it  is  usually  said,  must  be  natural,  certain,  and 
definite,  and  not  dependent  upon  the  fluctuations  of  the  sea- 
sons, as  the  falling  of  rain  and  the  melting  of  snow.^      But  if 
the  face  of  the  country  is  such  as  necessarily  to  collect  in  one 
body  so  large  a  quantity  of  water,  after  heavy  rains  or  melting 
of  snows,  as  to  require  an  outlet  to  some  common  reservoir,  and 
if  such  water  is  regularly  discharged  through  some  well-defined 
cha;inel,  which  the  force  of  the  water  has  made  for  itself,  and 
which  is  the  accustomed  channel  through  which  it  flows  and 
has  flowed  from  time  immemorial,  such  channel  is  a  natural 
water-course.^ 

Surface  water,  without  a  spring,  when  it  has  flowed  in  a  cer- 

»Hanson  v.  McCue,  42  Cal.  303;  11  Cush.  193;  Gannon  v.  Hargadon, 

Dickinson  v.  Worcester,  7  Allen,  10  Allen,  106;  Buffum  v.  Harris,  5 

19;  Shields  v.  Arndt,  4  N.  J.  Eq.  R.  I.  243. 

234;  Gillett  v.  Johnson.  30  Conn.  ^EatIy.  De  Hart,  12  N.  J,  Eq. 

180;  Luther  v.  Winnisinimet  Co.,  280;  Palmer  v.  Waddell,  22  Kan. 

9  Cush.  172;  Macomber  v.  Godfrey,  3o2.     Compare,  however.  Parks  v. 

108  Mass.  219;  Ashley  v.  Wolcott,  Newburyport,  10  Gray,  23. 
(94) 


Ch.  5.] 


NATURE   AND   EXTENT   OF   RIGHT. 


§62 


tain  direction  for  such  a  length  of  time  as  to  have  naturally 
formed  a  bed  and  banks  and  well-defined  stream  of  flowing 
water,  even  though  it  may  sometimes  be  dry  at  the  place  where 
it  lias  formed  such  banks  and  bed,  is  still  a  water-course  at  that 
point.' 

In  regard  to  the  channel  of  the  stream,  it  is  required  that  it 
should  have  a  distinct  and  substantial  existence,  with  well-de- 
fined banks  formed  by  the  flow  of  the  water,  and  presenting  un- 
mistakable evidence  to  the  eye  of  the  frequent  action  of  running 
water. ^  Thus,  sloughs  or  swales,  hollows  or  ravines,  by  which 
water  passes  over  land,  are  not,  in  the  technical  sense,  water- 
■courses.^  Upon  this  point  we  find  some  instructive  remarks  in 
a  recent  decision  of  the  supreme  court  of  California.  It  was 
said  by  McKinstry,  J.:  "It  is  not  essential  to  a  water-course 
that  the  banks  shall  be  unchangeable,  or  that  there  shall  be 
■everywhere  a  visible  change  in  the  angle  of  ascent  marking  the 
line  between  bed  and  banks.    The  law  cannot  fix  the  limits  of  va- 


lEulrichv.  Richter,  41  Wis.  318; 
Kelly  V.  Dunning,  39  N.  J.  Eq.  482; 
Pyle  V.  Richards,  17  Neb.  180,  s.  c. 
22  N.  W.  Rep.  370.  In  the  case  of 
West  V.  Taylor,  (Or.)  13  Pac.  Rep. 
665,  it  appeared  that  A.  owned 
lands  adjoining  a  lake,  about  two 
miles  long  and  half  a  mile  wide,  fed 
by  perennial  springs  and  a  moun- 
tain creek.  Originally  the  main 
outlet  from  the  lake  was  a  second 
€reek,  into  which  the  waters  flowed 
at  ordinarj' stages.  From  the  west- 
ern part  of  the  lake  flowed  a  third 
creek,  which  emptied  into  a  creek 
that  flowed  into  the  Pacific  ocean. 
The  main  outlet  becoming  choked 
up  with  sand,  the  waters  over- 
flowed the  lands  of  B.  and  C.  on 
the  north  of  the  lake,  forming 
marshes  and  swales,  and  escaped 
into  a  creek  flowing  into  a  bay; 


and  for  several  years  this  was  the 
main  outlet  from  the  lake.  B.  and 
C.  erected  a  dike  to  protect  their 
land,  which  raised  the  water  in  the 
lake,  and  threw  it  back  upon  A.'8 
land,  overflowing  about  one  thou- 
sand acres.  Previous  to  erecting 
the  dike,  B.  and  C.  had  cut  two 
ditches  that  carried  the  water  off 
their  land.  On  this  state  of  facts 
it  was  held  that  the  waters  on 
the  lands  of  B.  and  C.  could  not 
be  considered  merely  as  surface 
water,  but  constituted  a  water- 
course, and  that  B.  and  C.  had  no 
right  to  erect  the  dike. 

2  Gibbs  V.  Williams.  25  Kan.  214, 
8.  c.  37  Amer.  Rep.  241;  Shively  v. 
Hume,  10  Or.  76. 

3 Jones  V.Wabash,  etc.,  R.  Co.,  18 
Mo.  App.  251. 

(95) 


§   62  NATURE    AND    EXTENT   OF    RIGHT.  [Ch.  5. 

riation  in  these  and  other  particulars.  As  was  said,  in  effect,  by- 
Curtis,  J.,  in  Howard  v.  Ingersoll,  13  How.  428,  the  bed  and 
banks  or  the  channel  is  in  all  cases  a  natural  object,  to  be  sought 
after,  not  merely  by  the  application  of  any  abstract  rules,  but, 
'like  other  natural  objects,  to  be  sought  for  and  found  by  the 
distinctive  appearances  it  presents.'  Whether,  however,  worn 
deep  by  the  action  of  water,  or  following  a  natural  depression 
witlujut  any  marked  erosion  of  soil  or  rock;  whether  distin- 
guished by  a  difference  of  vegetation,  or  otherwise  rendered  per- 
ceptible,— a  channel  is  necessary  to  the  constitution  of  a  water- 
course. Of  course,  we  cannot  judicially  declare  that  a  channel 
is  of  such  a  nature  that  it  can  never  cease  to  exist.  Both  the 
evidence  and  findings  herein  show  that,  as  a  result  of  the  ac- 
tion of  water,  channels  have  been  closed  and  new  channels- 
formed.  We  cannot  say  but  the  indications  of  a  channel  may 
be  removed  by  other  natural  forces.  We  can  conceive  that 
along  the  course  of  a  stream  there  may  be  shallow  places  where 
the  water  spreads,  and  where  there  is  no  distinct  ravine  or  gully. 
Two  ascending  surfaces  may  rise  from  the  line  of  meeting  very 
gradually  for  an  indefinite  distance  on  each  side.  In  such  case, 
if  water  flowed  periodically  at  the  lowest  portion  of  the  depres- 
sion, it  flowed  in  a  channel,  notwithstanding  the  fact  that,  the 
water  being  withdrawn,  the  '  distinctive  appearances'  that  it  had 
ever  flowed  there  would  soon  disappear."^  On  the  other  hand, 
in  a  later  case  from  the  same  court,  it  appeared  that  the  owner 
of  lands,  ui)on  which  there  was  a  lagoon  having  no  natural  out- 
let, cut  a  ditch  for  irrigating  purposes.  Thereafter  he  conveyed 
part  of  the  land  on  which  the  lagoon  was  situated  to  the  de- 
fendants, and  the  remainder  of  his  lands  to  the  plaintiffs.  The 
irrigating  ditch  ran  between  the  different  tracts  conveyed.  By 
parol  permission  of  their  grantor,  (the  defendants,)  the  plain- 

1  Lux  V.  Hagiiin,  (Cal.)  10  Pac.  Rep.  770. 
(96) 


Ch.  5.]  NATURE    AND    EXTENT    OF   RIGHT.  §    63 

tiffs  had  used  the  waste  waters  of  the  ditch.  On  this  state  of 
facts  it  was  held  that,  the  water  never  having  flowed  in  any  nat- 
ural channel,  the  plaintiffs  never  acquired  any  riparian  rights 
in  the  flow  of  water  in  the  ditch.'] 

§  63.     Percolating  and  subterraneous  ■waters. 

[Percolating  waters  collected  or  gathered  in  a  stream,  running 
in  a  defined  channel,  are  such  property  or  incidents  thereof  as 
may  be  acquired  by  grant,  express  or  implied,  or  by  appropri- 
ation; and,  when  rights  in  them  are  thus  acquired,  the  owner 
cannot  be  divested  of  his  rights  by  the  wrongful  act  of  another.^ 
Thus  a  lake,  fed  by  streams  and  having  a  natural  channel,  and 
whose  waters  find  exit  by  percolation  in  a  perceptible  current 
through  a  bed  of  gravel,  is  a  running  stream,  and  may  not  be 
obstructed  so  as  to  set  back  upon  the  lands  of  another.^  The 
word  "percolate,"  as  used  in  the  cases  relating  to  the  right  of 
land-owners  to  use  water  on  their  premises,  designates  any  flow- 
age  of  sub-surface  water  other  than  that  of  a  running  stream, 
open,  visible,  and  clearly  to  be  traced.* 

In  regard  to  subterranean  streams,  the  general  consensus,  of 
the  authorities  appears  to  be  that,  if  an  under-ground  current  of 
water  flows  in  a  known  and  well-defined  channel,  so  as  to  con- 
stitute a  regular  and  constant  stream,  the  riparian  owner  may 
invoke  the  same  rules,  in  insisting  upon  its  uninterrupted  flow, 
which  exist  in  the  case  of  water-courses  upon  the  surface.^    And 

1  Green  v.  Carotto,  (Cal.)  13  Pac.  ^Mo  ,ier  v.  Caldwell,  7  Nev.  363. 

Rep.  685.     And  see  Gillett  v.  John-  See  a  valuable  editorial  note  on 

son,  30  Conn.  180;   Macomber  v.  Percolating    Waters  in  64  Amer. 

Godfrey,  108  Mass.  219.  Dec.  727. 

2Cross  V.  Kitts,  69  Cal.  217,  s.  c.  ^  Dickinson  v.    Grand  Junction 

10  Pac.  He]).  409;  Brown  v.  Ashley,  Canal  Co.,  7  Exch.  282;  Chasemore 

16  Nev.  317.  v.  Richards,  2  Hurl.  &  N.  186;  Cole 

^Hebron    Gravel    Road   Co.    v.  S.  Min.  Co.  v.  Virginia  Water  Co., 

Harvey,  90  Ind.  192,  s.  c.  46  Amer.  1  Sawy.  470;  Hale  v.  McLea,  53  Cal. 

Rep.  199.  578;  Strait  v.  Brown,  16  Nev.  317; 

POM. RIP. — 7  (97) 


§   64  NATURE   AND   EXTENT    OF   RIGHT.  [Ch.'5. 

SO,  where  the  exact  course  of  water  which  has  once  emerged  and 
sunk  can  be  tract-d  to  where  it  emerges  again,  the  proprietor  at 
this  point  is  protected  in  its  use  as  if  it  were  not  a  subterranean 
stream.'  But  if  the  water  flows  beneath  the  surface  without  a 
definite  channel,  or  in  courses  which  are  unknown  or  unascer- 
tainable,  it  is  not  subject  to  the  settled  law  governing  the  rights 
of  ri{)arian  owners.^] 

§  64.     Right  to  exclusive  use  of  water. 

Such  being  the  appropriator's  right  over  the  stream  as  such,  I 
proceed  to  consider  his  rights  over  the  water  which  comes  un- 
der his  exclusive  control  by  means  of  an  actual  diversion  and 
appropriation.  The  general  doctrine  is  settled,  by  the  unani- 
mous consent  of  the  authorities,  that  the  prior  appropriator  is 
entitled  to  the  exclusive  use  of  the  water,  up  to  the  amount  em- 
braced in  his  appropriation,  either  for  the  original  purpose  or 
for  any  other  or  different  purpose,  provided  the  amount  is  not 
thereby  increased,  without  diminution  or  material  alteration  in 
quantity  or  in  quality;  and  his  use  will,  to  that  extent  and  for 
such  purposes,  be  protected  against  all  subsequent  appropriators 
or  claimants  using  or  interfering  with  the  water,  both  above  and 
below  on  the  same  stream;  and  to  this  end  he  may  obtain  all 
proper  remedies,  legal  and  equitable.^     As  illustrations,  it  is 

Mahan  v.  Brown.  13  Wend.  261;  Haldeman  v.  Bruckhart,  45  Pa.  St. 

Smith  V.    Adams,    6    Paige,    435;  514;  Taylor  v.  Welch,  6  Or.  198. 

Wheatley  v.  Baugh.  25  Pa.  St.  528;  SHimes  v.  Johnson,  61  Cal.  259; 

Whetstone  v.  Bowser,  29  Pa.  St.  Stein  Canal  Co.  v.  Kern  Island  I. 

.59;  Haldeman  V.  Bruckhart,  45  Pa.  C.  Co.,  53  Cal.  563;   Reynolds  v. 

St.  514;  Taylor  V.  Welch,  6  Or.  198.  Hosmer,  51  Cal.  205;   Gregory  v. 

1  Saddler  v.  Lee,  66  Ga.  45,  s.  o.  Nelson,  41  Cal.  278:  Clark  v.  Wil- 
42  Am.  Rep.  62.  lett.  35  Cal.  534;  Davis  v.  Gale,  32 

2  Chasemore  V.  Richards,  7  H.  L.  Cal.  2'S;  McDonald  v.  Askew,  29 
Cas.  349;  Dickinson  v.  Grand  Cal.  200;  Hill  v.  Smith,  27  Cal.  476; 
.Junction  Canal  Co..  7  Exch.  282;  32  Cal.  166;  Rupley  v.  Welch.  23 
Acton  V.  Blundell,  12  Mees  &  W.  Cal.  4.53;  Phujnix  W.  Co.  v.  Fletch- 
324;  Hanson  v.  McCue,42  Cal.  303;  er,  Id.  482;  Natoma  W.  Co.  v.  Mc- 

(98) 


Ch.  5.]  NATURE  AND   EXTENT   OF    RIGHT.  §   65 

held  in  Kimball  v.  Gearhart  that,  when  the  appropriator  has 
,  completed  his  ditch  so  as  to  receive  the  water  appropriated,  "he 
is  then  entitled  to  said  water  as  against  all  persons  subsequently 
claiming  or  locating  it;"  and  "possession  or  actual  appropriation 
is  the  test  of  priority  in  all  claims  to  the  use  of  water,  when  such 
claims  are  not  dependent  upon  the  ownership  of  the  land 
through  which  the  water  flows."  In  Ortman  v.  Dixon  it  is  held 
that  "a  prior  appropriator  of  water  for  mill  purposes  is  entitled 
to  it  to  the  extent  of  his  appropriation,  and  for  those  purposes 
to  the  exclusion  of  any  subsequent  appropriation  for  the  same 
or  for  other  purposes."  In  Barnes  v.  Sabron  the  suj^reme  court 
of  Nevada  held  that  "the  first  appropriator,  for  purposes  of  irri- 
gation, of  the  water  of  a  stream  running  through  the  public 
lands,  has  the  right  to  insist  that  the  water  flowing  therein  shall, 
during  the  irrigating  season,  be  subject  to  his  reasonable  use  and 
enjoyment  to  the  full  extent  of  his  original  appropriation  and 
beneficial  use.  To  this  extent  his  rights  go,  but  no  further;  for, 
in  subordination  to  such  rights,  subsequent  appropriators  may 
appropriate  the  remainder  of  the  water  running  in  said  stream." 

§  66.     Appropriator  may  change  place  or  manner 
of  use. 

Whenever  a  prior  appropriation  has  been  made  for  a  certain 
kind  of  purpose  or  use,  at  a  certain  place,  the  appropriator  may, 
as  against  other  parties  whose  rights  have  accrued  subsequently 
to  his  own,  change  the  place  of  his  use  for  the  same  purpose,  if 
the  amount  of  water  taken  by  him  is  not  thereby  increased  be- 
yond that  of  his  original  appropriation;  and  it  seems  that  he 

Coy,  Id.  490;    Butte,  etc.,  Co.  v.  Ophir  Silver  M.  Co.  v.  Carpenter, 

Morgan,  19  Cal.  609;  Kidd  v.  Laird,  4  Nev.  534;  Barnes  v.  Sabron,  10 

15  Cal.  161;  Kimball  v.  Gearhart,  Nev.  217;  Strait  v.  Brown,  16  Nev, 

12  Cal.  27;   Ortman  v.  Dixon,  13  317;  Atchison  v.  Peterson,  20  Wall. 


Cal.  33;   Bear  River,  etc.,  Co.  v.      515. 
New  York   M.    Co.,  8    Cal.  327; 


(99) 


§   65  NATURE    AND    EXTENT    OF    RIGHT.  [Ch.  5, 

may,  as  against  such  parties,  change  the  nature  of  the  purpose 
or  use  to  which  the  water  was  applied,  provided  the  amount  of 
water  thereby  taken  is  not  increased,  or  the  interference  with  or 
bunlen  upon  the  subsequent  claimants  or  appropriators  is  not 
augmented.'  But  such  a  change  of  place  or  of  purpose  is  not 
permitted,  as  against  parties  who  have  acquired  subsequent 
rights,  when  it  would  enlarge  the  amount  of  water  used  beyond 
that  of  the  original  appropriation,  or  otherwise  increase  tlie  bur- 
den imposed  upon  them  by  such  appropriation.  These  conclu- 
sions seem  to  be  established  by  the  decisions.  In  Woolman  v. 
Garringer  ^  it  was  held  that  a  prior  appropriator  for  mining  pur- 
poses, at  a  certain  place,  may  extend  his  ditch,  and  use  his 
water,  to  the  extent  of  his  original  appropriation,  at  any  other 
place,  for  the  same  or  for  other  purposes..  Such  an  appropriator, 
who  has  duly  constructed  his  dam  and  ditch,  need  not  give  an 
actual  notice  to  subse(]ucnt  appropriators  of  his  intention  to  ex- 
tend his  ditch,  and  reclaim  his  waste  water,  and  use  the  water 
at  another  place.  '  In  JMaeris  v.  BicknelF  the  rule  was  stated 
that  a  mere  change  of  the  use  from  one  mining  place  to  another, 
where  the  appropriation  was  for  mining  purposes,  does  not  for- 


'[  A  riparian  owner,  having  the  the  snpply  he  is  entitled  to.  Ware 
right  to  divert  a  certain  quantity  v  Walker,  (Cal.)  13  Pac.  Rep.  475. 
of  water  from  a  stream,  may  take  And  see  Sieber  v.  Frink,  7  Colo, 
the  same  at  any  point  on  the  148,  s.  c.  2  Pac.  Rep.  901.  This  is 
stream,  and  may  change  the  point  also  the  doctrine  of  the  common 
of  diversion  at  pleasure,  provided  law.  In  AVhittier  v.  Cocheco  Man- 
he  does  not  injuriously  affect  the  uf'g  Co.,  9  N.  H.  454,  it  is  stated 
rights  of  other  appropriators  by  that,  where  a  right  exists  to  use  a 
such  change.  Junkans  v.  Bergin,  certain  quantity  of  water  for  pro- 
67  Cal.  267,  s.  c.  7  Pac.  Rep.  684.  pelling  machinery,  a  change  may 
An  appropriator  may,  as  against  be  made  in  the  mode  and  objects 
a  subsequent  purchaser  from  the  of  the  use.  and  in  the  place  of 
United  States,  carry  his  ditch  using  it,  if  the  quantity  is  not  in- 
through  such  purchaser's  lands  to  creased,  and  the  change  is  not  to 
a  point  higher  up  the  stream,  the  prejudice  of  others.] 
where  such  a  change  is  rendered  ^1  Mont.  535. 
necessary  to  enable  him  to  obtain  87  (jal.  261. 

(100) 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §  65 

feit  nor  abandon  nor  affect  the  prior  right  of  the  appropriator. 
In  McDonald  v.  Bear  River,  etc.,  Co.,^  after  declaring  that  the 
appropriation  of  water  for  mill  purposes  stands  on  the  same 
footing  as  an  appropriation  for  mining,  the  court  said  that  when 
a  party  has  erected  a  saw-mill,  and  appropriated  the  water  of  a 
public  stream  for  it,  he  may  use  the  water  for  a  grist-mill  which 
he  subsequently  erects.  In  Kidd  v.  Laird^  the  doctrine  on  this 
subject  was  announced  in  the  following  broad  and  general  man- 
ner: "A  person  entitled  to  divert  a  given  quantity  of  the  water 
of  a  stream  may  take  the  water  at  any  point  of  the  stream,  and 
may  change  the  point  of  diversion  at  pleasure,  if  the  rights  of 
others  are  not  injured  by  such  change.  This  fight  of  change 
does  not  depend  upon  the  mode  of  acquiring  the  right  to  use 
the  water,  whether  by  express  grant  or  by  prescription,  or  whether 
by  parol  license  or  presumed  consent  of  the  proprietor.  The 
difference  as  to  the  origin  of  the  right  affects  the  mode  of  deter- 
mining its  existence  and  its  extent,  [i.  e.,  the  amount  of  water 
appropriated,]  and  not  the  manner  of  its  exercise  and  enjoy ment.''* 
The  proper  limitation  upon  this  doctrine  was  stated  in  the  sub- 
sequent case  of  Butte  T.  &  M.  Co.  v.  Morgan,^  which  held  that 
a  party  appropriating  and  diverting  water  at  a  certain  point 
cannot  afterwards  change  the  place  of  diversion  so  as  to  preju- 
dice another  person  whose  rights  have  subsequently  accrued. 
And  it  was  further  said  that  the  case  of  Kidd  v.  Laird  does  not 
hold  anything  conflicting  with  this  conclusion,  and  the  decision 
in  that  case,  as  there  explained  and  limited,  was  reaffirmed. 
In  Davis  v.  Gale"*  the  court  again  laid  clown  the  general  rule  in 
the  most  unequivocal  manner:  "A  person  who  has  appropriated 
the  water  of  a  stream,  and  caused  it  to  flow  to  a  particular  place 
by  a  ditch,  for  a  special  use,  may  afterwards  change  the  use, 
and  the  place  at  which  he  used  it,  without  losing  his  priority 

ilSCal.  220.  3i9Cal.  609. 

215Cal.  161.  4  32Cal.  26. 

(101) 


§    65  NATURE    AND    EXTENT    OF   RIGHT.  [Ch.  5. 

ad  against  one  wlio  dug  a  ditch  from  the  same  stream  before 
the  change  was  made.  Such  a  person,  appropriating  water  for 
the  working  of  a  particular  mine,  may,  after  he  has  worked  out 
and  abandoned  said  mine,  extend  the  ditch,  and  use  the  water 
at  otlier  points,  without  losing  his  priority  as  against  a  person 
who  acquired  rights  in  the  stream  subsequently  to  his  appro- 
priation. Appropriation  and  use  of  water  for  beneficial  pur- 
poses are  the  tests  of  right  in  such  cases,  and  not  the  place  and 
character  of  the  particular  use.'''  In  Nevada  W.  Co.  v.  Powell* 
the  negative  side  of  the  rule  was  again  applied,  and  the  court 
said:  "If  a  person  has  appropriated  a  portwn  of  the  water  of  a 
stream,  and  has  made  a  dam  and  ditch  amply  suflEicient  to  ren- 
der his  appropriation  available,  and  has  thereby  acquired  the 
right  to  use  said  portion  only  of  such  water,  and  in  said  man- 
ner only,  this  will  not  prevent  other  persons  from  acquiring  a 
right  to  the  surplus  water  of  the  stream,  or  to  its  bed  or  banks, 
or  to  the  adjacent  land,  to  any  extent  which  will  not  interfere 
with  the  right  previously  acquired.  When  rights  of  subsequent 
appropriators  once  attach,  the  prior  appropriator  cannot  en- 
croach on  them  by  extending  his  use  beyond  the  first  appropri- 
ation. In  such  a  case  the  first  appropriator  cannot  extend  his 
claims,  or  change  the  manner  of  his  appropriation,  to  the  injury 
of  the  second  appropriator,  any  more  than  the  second  can  do  so 
to  the  injury  of  the  first;  each  is,  in  respect  to  his  own  appro- 
priation, prior  in  time  and  exclusive  in  right."  On  this  ground, 
it  was  held  that  the  prior  appropriator  was  not  authorized,  by 
raising  the  height  of  his  dam,  to  cut  off  or  diminish  the  flow  of 
the  surplus  water  which  had  been  thus  appropriated  by  the  de- 
fendants. 


J34Cal.  109.     The  facts  of  this  extent  of  the  appropriation, — rath- 
case,  however,  to  which  the  decis-  er  than  a  change  in  the  place  or  ia 
ion  applies,  show  an  increase  in  the  kind  of  the  use. 
the  (niantity  of  water  used, — in  the 

(102) 


Ch.  5.]  NATURE    AND  EXTENT   OF   RIGHT.  §  67 

§  66.     Remedies  for  interference  -v^ith  these  rights. 

Such  being  the  rights  of  the  appropriator,  any  interference 
with  the  water  of  the  stream  itself,  either  above  or  below  the 
point  of  his  diversion,  which  hinders  the  full  enjoyment  of 
those  rights,  and  any  interference  with  the  water  while  in  the 
ditch,  dam,  or  reservoir,  or  with  these  structures  themselves, 
are  injuries,  for  which  suitable  remedies  may  be  obtained. 

§  67.    Injuries  to  ditches. 

A  ditch  may  be  injured,  or  even  destroyed,  by  mining  under 
it,  thereby  causing  the  surface  of  the  soil  over  which  the  ditch 
runs  to  crack  and  settle.  In  such  a  case  the  mine-owners  are 
liable  to  the  proprietor  of  the  ditch  when  the  injury  has  been 
caused  by  their  negligent  or  unskillful  manner  of  conducting 
their  mining  operations;  but  whether  they  are  liable  for  such 
an  injury  in  the  absence  of  all  negligence  and  unskillfulness  is 
more  than  doubtful.^  In  the  case  cited,  which  was  brought  to 
restrain  the  mining  operations  under  such  circumstances,  the 
court  say  that  the  plaintiff  has  a  right  to  a  ditch  on  the  surface 
of  the  soil,  and  the  defendants  have  a  right  to  mine  under  the 
surface.  These  rights  are  not  necessarily  incompatible  or  con- 
flicting. To  the  two  parties  so  situated  the  maxim,  qui  prior 
est  in  tempore  potior  est  in  jure,  does  not  apply,  but  rather  the 
maxim,  sic  utere  tuo  ut  alienum  non  Isedas.  How  far  a  court  of 
equity  will  relieve  against  such  an  injury,  when  no  negligence 
or  lack  of  skill  is  charged ,  the  court  expressly  refrain  from  de- 
ciding, and  suggest  the  following  query:  "Whether  ditch  prop- 
erty in  the  mining  regions,  although  conceded  to  be  real  estate, 
is  to  be  regarded  by  courts  of  equity  with  the  same  measure  of 
favor  as  that  which  is  extended  to  land  held  by  owners  for  its 
own  sake,  and  not  put  to  use  for  an  ulterior  object,  is  doubted, 

1  Clark  v.Willett,  35  Cal.  534. 

(103) 


§    ('>8  NATURE    AND    EXTENT    OF    RIGHT.  [Ch.  5. 

but  not  decided."  It  is  abundantly  settled  that  parties  engaged 
in  mining  operations  will  be  restrained  from  interfering  with, 
or  destroying  or  washing  away,  the  ditch  belonging  to  another 
person.  The  riglits  of  a  prior  ditch-owner,  as  against  persons 
engaged  in  mining,  were  fully  established  by  the  case  of  Greg- 
ory V.  Nelson,'  in  which  the  following  points  were  decided:  If 
the  complaint  avers  ownership  by  the  plaintiff  of  a  certain 
ditch,  and  that  the  ground  over  which  it  runs  was  vacant  and 
unoccupied  wlien  it  was  dug,  and  the  plaiutitf  has  used  it  for 
years  for  mining  purposes,  and  the  answer  does  not  deny  these 
allegations,  nor  set  up  an}'  prior  right  of  defendants  to  said 
ground,  nor  any  claim  or  right  of  defendants  to  destroy  the 
ditch,  the  court  should  enjoin  the  defendants  from  destroying 
or  interfering  with  the  ditch  upon  the  pleadings,  regardless  of 
the  testimony.  If  a  party  owns  a  ditch,  and  the  right  of  way 
for  the  same,  to  conduct  water  for  mining  purposes,  and  has  ac- 
quired such  right  by  prior  appropriation,  the  court,  in  an  ac- 
tion brought  to  restrain  the  defendants  from  washing  avray  the 
ground,  should  not  allow  the  defendants  to  wash  away  the  ditch, 
provided  they  builcJ' a  flume  or  other  aqueduct  in  place  of  the 
ditcli  of  suflicient  capacity  to  carry  the  water  flowing  through 
it.  A  court  of  equity  had  no  power  to  make  such  a  decree  un- 
der these  circumstances.  A  court  should  not  license  a  trespass 
to  ditch  property  in  the  mining  regions,  nor  compel  the  owner 
to  exchange  his  ditch  for  some  other  means  of  conveying  the 
water  flowing  therein. 

§  68.     Remedies  for  unlawful  diversion. 

Interference  with  the  water  to  which  tlie  ap])ropriator  is  en- 
titled, whether  flowing  in  the  stream  or  running  through  his 
ditch,  may  either  diminish  its  quantity  or  deteriorate  its  quality. 
These  two  kinds  of  injuries  will  be  considered  separately. 

141  Cal.  278. 
(104) 


Ch.  5.]  NATURE    AND   EXTENT   OF    RIGHT.  §    68 

Of  course  the  mere  use  of  the  water  by  another  person,  when 
its  quantity  is  not  thereby  lessened  nor  its  quaht}^  deteriorated, 
is  no  injury  to  a  prior  appropriator.  If,  therefore,  A.  owns  a 
ditch,  and  has  the  right  to  divert  the  water  of  a  certain  stream 
by  its  means,  and  B.  subsequently  takes  water  from  the  same 
stream  at  a  place  above  the  head  of  A.'s  ditch,  and  uses  it  for 
his  own  purposes,  but  returns  it  back  undeteriorated  in  quality 
into  the  stream  before  it  would  reach  A.'s  ditch,  or  even  into 
the  U23per  part  of  the  ditch  itself  at  a  point  before  A.  has  use  for 
it,  no  injury  is  thereby  done  to  A.,  and  he  has  no  cause  of  action 
against  B.  therefor.^  Whenever  the  rights  of  a  prior  appropri- 
ator exist,  they  are  equally  protected  from  interference  and  con- 
sequent injury  by  parties  subsequently  locating  on  the  stream 
or  using  its  water  either  above  or  below  him, ^  The  diversion  of 
the  water  of  a  stream  is  a  private  nuisance  to  the  prior  appro- 
priator who  is  injured  thereby,  and  he  can  maintain  an  action 
for  such  nuisance.  For  a  past  diversion  the  only  remedy  is  a 
recovery  of  damages;  but,  when  the  diversion  is  continuing, 
equity  will  interfere  by  injunction.^  It  seems  the  injured  party 
may  himself  abate  the  nuisance.  When  A.  attempts  to  erect  a 
dam  for  the  purpose  of  diverting  the  water  of  a  stream  at  a  cer- 
tain place,  and  such  diversion  is  unlawful  as  against  B.,  who  is 
a  prior  appropriator  and  has  a  dam  at  a  lower  point  on  the 

1  Yankee  Jim's  Uuion  W.  Co.  v.  his  right,  but  also  for  its  preserva- 
Crary,  25  Cal.  504.  tiou.  la  actions,  therefore,  for  the 
2 Hill  V.  King,  8  Cal.  337.  diversion  of  water,  where  there  is 
2 Tuolumne  W.  Co.  v.  Chapman,  a  clear  violation  of  an  established 
8  Cal.  392;  Parke  v.  Kilham.  Id.  77.  right,  and  a  threatened  continii- 
In  Brown  v.  Ashley,  16  Nev.  312,  ance  of  such  violation,  it  is  not 
the  court  held  that  where  the  act  necessary  for  the  plaintiff  to  show 
complained  of  is  committed  under  actual  damages,  or  even  a  preseni 
a  claim  of  right,  which,  if  allowed  use  of  the  water,  in  order  to  au- 
to continue  for  a  certain  length  of  thorize  a  court  to  issue  an  injunc- 
time,  would  ripen  into  an  adverse  tion  restraining  the  actual  or 
right,  and  deprive  the  plaintiff  of  threatened  diversion,  and  to  make 
his  property,  he  is  not  only  entitled  it  perpetual. 
to  an  action  for  the  vindication  of 

(105) 


§    69  NATURE    AND    EXTENT    OF    RIGHT.  [Ch.  5. 

stream,  it  is  held  that  13.  may  oust  A.  from  possession,  and  may- 
prevent  the  construction  of  his  dam.^  Where  a  party  has  lo- 
cated on  a  stream,  erected  a  mill,  and  appropriated  the  water 
for  its  use,  in  an  action  against  a  mere  trespasser  to  recover 
damages  for  diverting  the  water,  it  is  sutlicient  that  the  com- 
plaint alleges  the  plaintiffs  possession  of  the  land,  the  mill-site, 
and  the  mill,  without  averring  riparian  ownership  or  a  prior  ap- 
propriation of  the  water. ^  In  a  suit  to  obtain  relief  against  an 
injury  to  the  plaintiffs  rights  as  a  prior  appropriator,  it  is  no 
defense  whatever  that  the  defendant's  works  are  the  more  valu- 
able, or  his  interests  the  more  important.^  Where  an  appropri- 
ation has  been  made  at  a  particular  point,  a  person  subsequently 
locating  or  constructing  works  on  the  same  stream  above  must 
not  impede  the  regular  flow  of  the  water,  if  the  prior  appropri- 
ator would  be  injured  thereby.  A  mere  trivial  or  temporary 
irregularity  caused  in  the  flow  does  not  constitute  a  cause  of  ac- 
tion; but  a  sensible  injury  will  be  restrained  by  injunction,  as 
well  as  compensated  for  in  damages.^  Where  a  ditch-owner 
uses  a  ravine  as  a  part  of  his  ditch  to  conduct  the  water  of  a 
stream  which  he  has  appropriated,  the  natural  waters  of  such 
ravine  belong  to  him  as  the  tirst  appropriator  thereof,  and  an 
action  will  lie  in  his  favor  for  an  appropriation  or  diversion  of 
such  waters  by  a  third  person.* 

§  69.     Equitable  jurisdiction. 

[It  was  stated  in  the  preceding  section  that,  where  the  un- 
lawful diversion  is  continuing,  a  court  of  equity  will  interfere 
by  injunction  against  the  wrong-doer.     In  order  to  obtain  this 

1  Butte  T.  M.  Co.  v.  Morgan,  19  « Phoenix  W.  Co.  v.  Fletcher,  23 

Cal.  609.  Cal.  481;  Natoma  W.  &  M.  Co.  v. 

2 McDonald  v.  Bear  River,  etc.,  McCoy,  23  Cal.  490. 

Co.,  13  Cal.  220.  6 Hoffman  v.  Btone,  7  Cal.  46. 

3  Weaver  v.  Eureka  Lake  Co.,  15 
Cal.  271. 

(106) 


Ch.  5.]  NATURE    AND   EXTENT   OF   RIGHT.  §    69 

assistance  from  chancery,  it  is  not  necessary  for  the  complain- 
ant to  have  recovered  his  damages  at  law.  "Under  our  Codes, '^ 
say  the  California  court,  "the  riparian  proprietor  is  not  required 
to  establish  his  right  at  law  by  recovering  a  judgment  in  dam- 
ages before  applying  for  an  injunction.  The  decisions  (in  cases 
of  alleged  nuisances)  based  on  the  failure  of  the  complainant  tcv 
have  had  his  right  established  at  law  have  no  appositeness  here. 
Here  the  plaintiff  must,  indeed,  clearly  make  out  his  right  in 
equity,  and  show  that  money  damages  will  not  give  him  ade- 
quate compensation.  If  he  fail  to  do  this,  relief  in  equity  will 
be  denied;  but,  if  he  proves  his  case,  relief  will  be  granted,  al- 
though he  has  not  demanded  damages  at  law.  In  the  case  at 
bar,  the  plaintiffs  do  not  admit  that  damages  would  constitute 
compensation,  and  ask  for  an  injunction  until  they  shall  recover 
such  compensation  in  an  action  for  damages.  The  decisions 
which  bear  on  that  class  of  cases,  and  which  require  of  the 
plaintiff  to  show  that  he  has  promptly  sought  redress  at  law, 
have  little  applicability."^  And  indeed  it  is  settled  that  an  ac- 
tion of  ejectment  will  not  lie  to  recover  possession  of  a  water- 
course.^ 

Since  a  court  of  equity  may  grant  or  withhold  its  aid  accord- 
ing to  the  circumstances,  its  intervention  can  only  be  secured 
by  the  presentation  of  a  substantial  case.  Thus,  each  riparian 
proprietor  has  a  right,  within  his  own  territory,  to  the  use  of 
the  water  as  it  flows,  returning  it  to  the  channel  of  the  stream 
for  the  use  of  others  below;  but  if  the  water  may  be  conven- 
iently used  by  two  riparian  owners,  without  strictly  enforcing 
such  right,  a  court  of  equity  may  refuse  to  lend  its  aid;  and  ac- 
cordingly it  has  been  held  that  a  riparian  owner  would  not  be 
enjoined  from  taking  water  from  a  river  for  the  use  of  his  mill, 

iLux  V.  Haggin,  (Cal.J  10  Pac.  ag^ift  v.  Goodrich,  (Cal.)ll  Pac. 
Rep.  688.  Rep.  561;  Ang.  Water-Courses,  §  8. 

(107) 


§    69  NATUIIE    AND    EXTENT    OF    RIGHT.  [Cll.  5. 

although  it  was  not  returned  to  the  channel  of  the  river  before  it 
roaclieil  the  territory  of  an  adjoining  owner,  where  it  was  not 
clear  from  the  evidence  that  such  adjoining  owner  could  not  use 
the  water,  with  substantially  the  same  results,  through  the  race  of 
the  defendant's  raill.^  And,  further,  equity  has  jurisdiction  for 
taking  the  necessary  steps  to  make  its  decrees  effectual.  Hence, 
when  the  court  has  jurisdiction  to  grant  an  injunction  restrain- 
ing the  unlawful  diversion  of  waters,  it  may  also  require  the  de- 
fendant to  remove  the  obstructions  by  means  of  wliich  the  di- 
version is  effected.^ 

Unless  the  flow  of  a  stream  to  the  land  of  a  riparian  propri- 
etor has  been  appreciably  or  perceptibly  diminished,  he  is  not 
entitled  to  an  injunction  against  another  for  wrongfully  divert- 
ing water  from  the  stream.^  But  at  the  same  time,  as  stated  in 
a  late  case,  a  continuous  wrongful  diversion  of  water  will  be  re- 
strained in  equity  at  the  instance  of  a  prior  ai:)propriator  thereof, 
although  no  actual  damages  are  averred  or  proved;  the  relief 
being  granted  in  such  cases  to  prevent  the  wrongful  acts  from 
ripening  into  a  right. ^  Hence,  also,  the  comjilaint  in  an  action 
by  an  appropriator  of  water,  to  restrain  the  unlawful  diversion 
of  the  stream,  need  not  allege  that  the  plaintiff  is  in  a  position 
to  use  the  water  himself,  or  that  he  is  in  any  position  which 
gives  him  a  right  to  furnish  it  to  others;  but  it  is  sufficient  to 
allege  that  he  has  a  right  to  the  use  and  enjoyment  of  the  water. ^ 
So  the  riparian  owner  is  entitled  to  the  aid  of  equity  to  enjoin 
a  diversion,  notwithstanding  he  may  have  made  no  use  of  the 
water-power  himself,  or  sustained  but  small  pecuniary  damages, 

1  Mason  v.  Cotton,  4  Fed.  Rep.  Creigbton  v.  Kaweah  CanalCo.,  67 

792.  Cal.  231,  s.  c.  7  Pac.  Rep.  658. 

2, Johnson  v.  Superior  Court  of  ^ Moore    v.   Clear  Lake   Water- 

Tulare  Co.,  (Cal.)  4  Pac.  Rep.  576.  Works,  68  Cal.  146,  a.  0.  8  Pac. 

3  Moore    v.  Clear    Lake   Water-  Rej).  816. 

Works,   (Cal.)   5   Pac.    Rep.    494;  6 id. 

(108) 


Ch.  5.]  NATURE    AND    EXTENT   OF   RIGHT.  §    69 

and  although  the  defendant  may  be  suljjected  to  heavy  expense 
if  compelled  to  restore  the  water  to  its  original  channel.^ 

In  regard  to  the  parties  to  actions  of  this  character,  the  rule 
seems  to  be  established  that,  where  each  of  two  defendants  made 
a  diversion  of  the  water  fcrr  his  own  benefit,  separately  from  the 
other,  and  without  any  collusion  or  joint  action  between  them, 
a  joint  action  to  recover  damages  for  such  diversion  is  not  main- 
tainable.^ Under  the  peculiar  system  of  "irrigating  ditches," 
prevailing  in  some  of  the  states  and  territories,  it  is  held  that 
the  owners  of  irrigated  lands,  who  -have  the  right  to  take  water 
from  such  a  ditch,  may  bring  suit  for  an  injunction  against  one 
who  wrongfully  diverts  water  from  the  ditch  to  their  injury, 
though  the  ditch  be  the  property  of  another,  "  Though  the  own- 
ers of  the  ditch  are  entitled  to  toll  for  the  water,  the  owners  of 
the  land  are  entitled  to  the  water  on  payment  of  the  toll.  The 
diversion  of  the  water  from  the  ditch  would  injure  the  owner 
of  the  ditch,  it  is  true,  but  it  would  also  injure  the  owner  of  the 
land  to  be  irrigated,  to  deprive  him  of  the  water.  The  owner 
of  the  ditch,  for  many  reasons,  might  decline  to  sue.  He  might 
be  in  collusion  with  the  wrong-doer  to  destroy  the  value  of  plain- 
tiff/s  lands,  in  the  hope  of  buying  them.  He  might  be  actuated 
by  private  malice.  He  might,  from  motives  of  economy,  refuse 
to  embark  in  a  lawsuit  of  this  character.  The  rights  of  plain- 
tiff would  be  of  little  value  if  they  were  subject  to  the  interest, 
whim,  or  caprice  of  the  owner  of  the  ditch. "^ 

In  an  action  on  an  injunction  bond  to  recover  damages  for 
loss  of  plaintiff's  crops,  by  reason  of  his  being  restrained  from 
using  the  water  in  a  certain  ditch,  the  evidence  showed  that 
there  was  a  great  scarcity  of  water,  and  that  it  could  not  have 


^ Weiss  V.  Oregon  Iron  Co.,  13         2 Evans  v.  Ross,   (Cal.)  8    Pac. 
Or.  496,  s.  c.  11  Pac.  Rep.  255;  cit-      Rep.  88. 

ing  High,  Inj.  §  795.  ^Clifford  v.   Larrien,  (Ariz.)  11 

Pac.  Rep.  397. 

(109) 


§  70  NATURE    AM)   EXTENT    OF    RIGHT.  [Cll.  5. 

readied  the  i)laintifl"'s  lands,  whereupon  a  verdict  for  nominal 
damages  was  rendered  and  sustained;  and  it  was  further  held 
that  wliere  a  i)arty  sues  for  damages  for  such  a  cause,  if  it  is 
sliown  that  he  could  have  obtained  water  from  another  source, 
lie  will  not  be  entitled  to  receive  a  greater  sum  than  he  would 
have  had  to  expend  to  obtain  water  from  such  source.^ 

The  prior  locator  of  a  mining  claim  on  the  bank  of  a  stream 
has  a  right  to  the  use  of  the  bed  of  the  stream  for  the  purpose 
of  tluming  or  working  his  claim,  and  may  recover  damages  for 
the  obstruction  of  such  right  by  jDarties  who  subsequently  erect 
dams  or  embankments  upon  the  stream,  by  reason  of  which  he 
is  hindered  from  working  his  claim  by  flumes  or  other  neces- 
sary means  or  appliances.^] 

§  70.     Deterioration  of  quality  of  -water. 

With  respect  to  deterioration  in  the  quality  of  the  water, 
caused  by  subsequent  locators  or  claimants  higher  up  the  stream, 
there  was  at  an  early  day  some  doubt;  but  the  rule  is  now  set- 
tled that  an  interference  of  this  kind  producing  injury  will  be 
treated  in  the  same  manner  as  an  interference  with  the  quantity. 
In  the  early  case  of  Bear  River,  etc.,  Co.  v.  New  York  M.  Co.^ 
the  plaintiff  was  the  prior  appropriator  of  water  for  mining  pur- 
poses. The  defendants  took  the  water  at  a  point  higher  on  the 
stream,  used  it  for  their  mining  purposes,  and  then  sent  it  down 
the  stream  undiminished  in  quantity,  but  filled  with  mud,  sand, 
gravel,  and  other  mining  debris.  In  regard  to  this  the  court, 
after  stating  the  rule  concerning  diminution  in  quantity,  said: 
"As  to  deteriorations  in  quality  by  the  water  being  used  for  min- 
ing above  the  plaintiff,  this  is  damnum  absque  injuria.  Any 
other  rule  would  prohibit  any  use  of  the  whole  water  of  a  stream, 
80  as  to  preserve  a  small  quantity  of  it  first  appropriated."     The 

1  Mack  V.  .Jackson,  (Colo.)  13  Pac.         2  gjmg  y.  Smith,  7  Cal.  148. 
Rep.  542.  88  Cal.  337. 

(110) 


Ch.  5.]  NATURE    AND   EXTENT   OF    RIGHT.  §   70 

conclusion  reached  in  this  decision  was  antagonistic  to  the 
claims  of  the  prior  appropriator,  and,  if  final,  would  plainly 
render  his  rights  very  precarious,  and  liable,  in  fact,  to  com- 
plete destruction  by  such  a  ijollution  of  the  water  as  would  make 
it  wholly  unfit  for  his  purposes.  In  the  subsequent  case  of 
Hill  V.  Smith'  this  former  decision  was  entirely  abandoned, 
and  a  rule  was  established  which  fully  protects  all  the  rights  of 
the  prior  appropriator.  The  court  held  that  if  parties  engaged 
in  mining  operations  above  the  head  of  a  ditch  belonging  to  a 
prior  appropriator,  on  the  same  stream,  injure  the  water  by 
means  of  mud,  sand,  sediment,  or  other  mining  debris,  they  are 
liable  therefor  to  the  ditch-owner,  and  their  liability  is  not  at 
all  a  question  of  negligence  or  unskillfulness.  If  the  ditch- 
owner  is  in  fact  injured,  the  miners  are  liable,  even  though  such 
injury  is  not  caused  by  their  negligent  or  unskillful  methods  of 
mining.  As  between  ditch-owners  and  miners  using  the  same 
stream,  the  law  does  not  tolerate  any  injury  by  one  to  the  prior 
rights  of  the  other.  In  regard  to  the  basis  of  these  rights,  the 
court  say  that  the  reasons  which  underlie  the  common-law  rules 
concerning  riparian  rights  have  not  lost  their  force  in  the  min- 
eral regions  of  this  state.  The  rule  thus  settled  cannot  be  re- 
stricted to  the  pollution  of  water  by  mining  operations  alone. 
It  must  extend  to  all  modes  of  deteriorating  the  quality  of  water 
by  which  injury  is  done  to  a  prior  appropriator.  This  view  is 
taken  of  it  by  the  supreme  court  of  Utah,  which  holds  that  when 
the  water  of  a  stream  had  been  appropriated  and  diverted  by  a 
ditch  for  purposes  of  irrigation  and  for  domestic  uses,  the  pol- 
lution of  the  stream  above  the  ditch  is  a  private  nuisance.^ 

127  Cal.  476;  and  see  s.  c.  32  Cal.  166. 
8  Cramer  v.  Randall,  2  Utah,  348. 

(Ill) 


§    72  NATUHK    AND    EXTENT  OF   RIGHT.  [Ch.  5. 

II.     LiAnir^iTY  FOR  Da^iac.es  Caused  by  Ditches. 

§  71.     Various  kinds  of  injuries. 

It  seems  proper,  in  this  connection,  to  consider  very  briefly 
the  liabihtics  of  ditch-owners,  miners,  appropriators,  and  other 
parties  using  waters  as  before  described,  for  injuries  caused  or 
occasioned  by  such  use  to  adjoining  proprietors  and  occupants. 
These  injuries  may  be  of  various  kinds,  resulting  from  negli- 
gence, unskillfulness,  design,  intentional  trespass,  from  the  meth- 
ods in  which  the  use  of  the  water  is  ordinarily  conducted,  and 
the  like.  I  shall  examine  these  different  species  or  types  of  in- 
jury se]>arately. 

§  72.     Damages  caused  by  breaking  or  overflo-w. 

First,  where  the  injury  is  not  intentional,  nor  resulting  from 
the  ordinary  and  constant  mode  of  using  the  water,  but  is  caused 
by  the  breaking  or  overflow  of  ditches,  reservoirs,  dams,  and 
other  structures,  lawfully  erected  for  the  purpose  of  appro^Driat- 
ing  the  water  to  legitimate  uses.  The  doctrine  is  settled  by  the 
English  courts  that  whenever  a  party  lawfully  constructs  a  res- 
ervoir, embankment,  dam,  or  other  artificial  structure  on  his 
own  land,  for  the  purpose  of  catcliing,  impounding,  or  retaining 
water,  he  thereby  becomes  an  insurer  of  the  safety  of  his  adjoin- 
ing or  neighboring  proprietors  and  occupants  against  all  possi- 
ble injury  occasioned  by  his  structure.  He  is  absolutely  liable 
to  a  neighboring  proprietor  or  occupant  for  all  injury  done  to 
the  latter  through  a  bursting  or  overflow  of  his  reservoir  or  other 
structure,  entirely  irrespective  of  any  negligence  or  want  of  skill 
in  its  erection  or  management,  and  even  though  the  accident 
was  caused  by  an  unusual  storm,  flood,  or  other  so-called  "act 
of  God."  The  English  decisions  have  not  been  followed  in  all 
our  American  states.  The  doctrine  which  they  establish  has 
(112) 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §   72 

been  rejected  by  the  courts  of  California,  and  pronounced  en- 
tirely inapplicable  to  the  mining  and  water  interests  of  the  Pa- 
cific communities.  It  has  been  settled,  by  a  series  of  well-con- 
sidered decisions,  that  ditch-owners  and  proprietors  of  similar 
works  are  only  bound  to  use' that  amount  of  care,  skill,  and  dili- 
gence in  the  erection,  maintenance,  and  use  of  their  reservoirs, 
ditches,  canals,  flumes,  and  the  like,  which  an  ordinarily  pru- 
dent man  uses  in  the  management  of  his  own  affairs  of  the  same 
kind  and  under  the  same  circumstances.  I  will  refer  to  a  few 
of  the  leading  cases  in  which  this  test  of  liability  was  judicially 
settled . 

In  one  of  the  earliest  of  these  cases  the  action  was  brought  to 
recover  damages  caused  by  the  bursting  of  defendant's  dam, 
whereby  the  plaintiff's  land  was  overflowed  and  injured.  The 
right  to  recover  was  based  upon  an  allegation  that  the  dam  was 
constructed  in  a  careless  and  insufficient  manner.  Held,  that 
such  a  claim  presented  a  good  cause  of  action;  and  if  the  dam 
was  thus  constructed,  and  the  bad  construction  was  the  proxi- 
mate cause  of  the  bursting  and  overflow,  the  defendant  was  lia- 
ble. But  the  court  at  the  trial  had  charged  the  jury  as  follows: 
"If  the  jury  believed  that  the  dam  was  improperly  constructed, 
or  that  the  defendant  could  have  constructed  it  in  a  better  or  more  sub- 
stantial manner,  so  as  to  prevent  its  breaking,  then  the  defendant 
was  liable."  This  charge  was  held  to  be  erroneous.  It  pre- 
sented the  defendant's  duty  and  liability  in  too  broad  a  man- 
ner. The  question  is  not  what  the  defendant  could  possibly 
have  done,  but  what  discreet  and  prudent  men  should  do,  or 
ordinarily  do,  in  such  cases,  where  their  own  interests  are  to  be 
affected.^ 

Wolf  V.  St.  Louis,  etc.,  Co.^  was  a  similar  action,  to  recover 
damages  for  the  overflowing  of  plaintiff's  land  through  the  neg- 

1  Hoffman  v.  Tuolumne,  etc.,  Co.,  10  Cal.  413.  nO  Cal.  541. 

POM.RIP. — 8  (113) 


§   73  NATURE    AND    EXTENT   OF   RIGHT.  [Ch.  5. 

ligent  construction  and  use  of  defendant's  flume.  On  the  trial 
the  court  charged  that  defendant  was  bound,  in  the  construction 
and  management  of  its  dam  and  flume,  to  use  all  the  care  which 
a  vei'ij  prudent  owner  would  use  under  the  like  circumstances. 
This  instruction  was  pronounced  error;  that  the  owner  of  a 
flume,  ditch,  reservoir,  etc.,  is  bound  to  use  that  care  and  cau- 
tion, in  the  construction  and  management  of  his  water-works, 
to  prevent  injury  to  others,  which  ordhiarily  prudent  men  use  in 
like  instances  in  their  own  affairs;  and  that  the  question  of  neg- 
ligence in  such  cases  must  largely  depend  upon  all  the  surround- 
ing circumstances.  In  a  similar  action  to  recover  damages  from 
the  overflowing  of  plaintiff's  land  by  the  breaking  of  defendant's 
dam,  the  defendant  was  held  liable  for  negligence  in  building 
and  using  the  dam,  whereby  the  water  overflowed  the  lands  of 
the  plaintiff.  The  court  added  the  further  most  important  rule 
governing  this  class  of  cases,  that  the  doctrine  of  contributory 
negligence  on  the  part  of  the  plaintiff  could  not  apply  to  an  in- 
jury caused  by  such  negligence  of  the  defendant;  that  a  want  of 
reasonable  care  on  the  plaintifi''s  part  could  not  be  set  up  as  a 
defense  to  such  an  action.' 

§  73.     Proper  measure  of  care  required. 

While  the  English  doctrine  is  extreme  in  one  direction,  it 
may  well  be  doubted,  I  think,  whether  this  rule  does  not  go  too 
far  in  the  other  extreme,  and  impose  an  insufficient  liability 
upon  the  owners  of  water-works.  Since  these  structures  are  nec- 
essarily dangerous  to  neighboring  proprietors,  and  since  the  in- 
jury caused  by  their  accidental  bursting  or  overflow  is  necessa- 
rily great,  it  would  seem  just  that  their  owners  should  be  re- 

iFralerv.  Sears,  etc.,Co..l2Cal.  Miners'    Ditch    Co.,    7    Cal.    335; 

556.    As  layini?  down  the  same  gen-  Campbell  v.  Bear  River,  etc.,  Co., 

tral  test  of  liability,  see,  also,  Todd  35  Cal.  679;  Richardson  v.  Kier,  34 

Y.  Cochell,  17  Cal.  98;  Tenney  v.  Cal.  63,  74,  and  37  Cal.  263. 

(114) 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §    73 

quired  to  use  all  reasonably  possible  means  in  their  construction 
and  management  to  prevent  accidental  injuries  thereby.  I 
would  venture  to  suggest  that  the  rule  as  laid  down  by  the  trial 
court  in  the  case  of  Hoffman  v.  Tuolumne,  etc.,  Co.,  above 
quoted,  would  be  more  reasonable  and  just  to  nil  the  parties  in- 
terested than  the  one  finally  adopted  by  the  court.  These  dams, 
reservoirs,  and  other  structures,  in  their  essentially  dangerous 
nature,  have  some  analogy,  at  least,  to  railways,  and  the  same 
test  of  liability  might,  under  their  resiDective  circumstances,  be 
appropriately  applied  to  each.' 

It  was  also  held  by  the  supreme  court  of  Nevada  that  a  dam 
erected  on  a  stream,  in  a  manner  in  no  wise  injurious  or  preju- 
dicial at  the  time  of  its  erection  to  a  mill  above,  but  which,  by 
reason  of  circumstances  that  could  not  have  been  anticipated, 
happening  subsequently,  and  operating  in  connection  with  it, 
causes  the  water  to  flow  back  upon  the  mill,  is  not  such  an  ob- 
struction as  to  authorize  its  abatement,  or  to  justify  a  recovery 
of  damages  against  the  person  building  it.^ 

*  [In  the  recent  case  of  Weide-  for  a  certain  purpose,  it  charged 
kind  V.  Tuolumne  Water  Co.,  (Cal.)  with  respect  to  a  matter  of  fact. 
4  Pac.  Rep.  415,  Sharpstein,  J.,  The  court  might  as  well  have 
observed:  "It  was  proper  to  in-  charged  them  that,  if  the  dam  was 
struct  the  jury  as  to  the  degree  of  not  of  certain  dimensions  or  con- 
care  and  vigilance  which  the  law  structedof  a  particular  kind  of  ma- 
devolved  on  the  defendant  in  the  terial,  it  was  insufficiently  and  neg- 
construction  and  maintenance  of  ligently  constructed.  The  defend- 
its  dam,  and  that,  if  it  neglected  or  ant  had  a  right  to  have  the  opinion 
failed  to  exercise  that  degree  of  of  the  jury  on  those  questions, 
care  and  vigilance,  it  would  be  lia-  And  we  think  the  court  erred  in 
ble  for  such  damages  as  anyone  charging  that  'it  was  the  duty  of 
might  suffer  from  the  dam's  break-  the  defendant  to  constantly  exam- 
ing  away.  But  when  the  court  ine  said  dam  during  the  season  of 
went  beyond  that,  and  instructed  freshets.'  That  might  depend  on 
the  jury  that  the  dam  was  '  insuffi-  circumstances,  and  should  have 
ciently  and  negligently  construct-  been  left  to  the  jury.  "] 
ed'  unless  it  had  gates  sufficient  ^ppoctor  v.  Jennings,  6  Nev  83. 

(115) 


§    74  NATURE    AND    EXTKNT    OF    RIGHT.  [Ch.  5. 

§  74.     Injuries  from  intentional  trespasses. 

Secondly,  where  the  injuries  are  intentional  trespasses.  In 
these  instances  the  proprietors  of  the  water-works  are,  of  course, 
liable  without  regard  to  any  question  of  negligence  or  lack  of  skill. 
The  law  does  not  permit  one  person,  under  color  of  a  right  to  ap- 
propriate, divert,  or  use  the  water  of  a  public  stream,  to  trespass 
upon  the  lands  or  invade  the  existing  rights  of  another  party. 
Thus  it  is  expressly  held  that  the  statutes  of  congress  of  1866  and 
1870  merely  confirm  such  rights  of  water  on  the  public  lands  as 
were  accorded  to  the  owners  of  mining  and  other  claims  by  the 
state  customs,  laws,  and  decisions  prior  to  their  enactment. 
These  statutes  do  not  grant  any  rights  not  recognized  by  such  local 
customs  and  laws.  They  do  not  authorize  A.,  while  engaged  in 
constructing  a  ditch  for  water,  to  excavate  it  across  the  mining 
claim  of  B.,  which  was  located  previously  to  the  location  of  the 
ditch. ^  In  another  case  a  ditch  conducted  water  from  a  stream 
over  the  adjacent  country,  crossing  other  small  natural  water- 
courses, the  beds  of  which  were  dammed  up  by  the  embank- 
ment of  the  ditch,  and  by  the  fall  of  rain  the  waters  of  the 
Btreams  became  so  swollen  as  to  render  it  necessary  to  cut  the 
embankment  of  the  ditch  in  order  to  preserve  it  from  injury; 
and  the  owners  of  the  ditch  cut  the  embankment  at  a  point 
where  there  was  no  natural  water-course,  so  that  tlie  waters  were 
turned  onto  the  cultivated  land  of  the  plaintiff,  causing  dam- 
age. Held,  that  the  injury  thereby  sustained  was  not  an  act 
of  God,  but  resulted  from  the  voluntary  act  of  the  ditch-own- 
ers, and  they  were  liable  to  the  plaintiff  for  the  damage.  A. 
may  not,  in  order  to  save  his  own  proj)erty,  destroy  the  prop- 
erty of  B.,  however  urgent  the  necessity.^ 

'Titcomb  v.  Kirk,  51  Cal.  288;         STurner  v.  Tuolumne,  etc.,  Co., 
and  see,  also,  Henshaw  v.  Clark,      25  Cal.  398. 
14  Cal.  461;  Boggs  v.  Merced  M. 
Co.,  14  Cal.  282,  379. 

(116) 


Ch.  5.]  NATURE    AND    EXTENT    OP^    RIGHT.  §   75 

§  75.     Damages   from  miode  of  construction  or  op- 
eration of  -vsrorks. 

Thirdly,  where  the  injury  is  not  an  intentional  trespass,  nor 
merely  the  result  of  negligence,  but  is  the  natural  or  necessary 
consequence  of  the  mode  in  which  the  water-works  are  con- 
structed, or  in  which  they  are  ordinarily  operated.  In  some 
of  the  instances  placed  in  this  grouj?,  the  wrong  may  approach 
very  nearly  to  an  intentional  trespass,  while  in  others  it  may 
involve  negligence;  but,  on  the  whole,  these  cases  constitute  a 
separate  and  distinct  class.  The  forms  of  such  injuries  are  va- 
rious. One  form  consists  in  the  discharge  of  the  water,  after  its 
use,  directly  upon  the  lands  of  another  j^erson,  or  its  discharge 
in  such  a  place  and  manner  that  it  naturally  and  necessarily 
flows  down  upon  the  lands  of  a  neighboring  proprietor.  In  the 
important  case  of  Richardson  v.  Kier^  the  defendant  Kier  owned 
A  ditch  passing  over  and  across  Richardson's  land.  In  regard 
to  the  general  duty  of  the  ditch-owner  under  these  circumstances, 
the  court  said:  "He  [the  ditch-owner]  is  bound  so  to  use  his 
ditch  as  not  to  injure  the  plaintiff's  land,  irrespective  of  the 
question  as  to  which  has  the  older  right  or  title.  He  is  bound 
to  keep  it  in  good  repair,  so  that  the  water  will  not  overflow  or 
break  through  its  banks,  and  destroy  or  damage  the  lands  of 
other  parties;  and  if,  through  any  fault  or  neglect  of  his  in  not 
properly  managing  and  keeping  it  in  repair,  the  water  does  over- 
flow or  break  through  the  banks  of  the  ditch,  and  injure  the 
land  of  others,  either  by  washing  away  the  soil  or  by  covering 
the  soil  with  sand,  the  law  holds  him  responsible."  In  regard 
to  the  discharge  of  the  water  after  use  upon  the  land  of  an  ad- 
jacent owner,  the  court  further  held:  "When  Kier  discharged 
his  water  from  his  ditch  above  Richardson's  land,  in  such  a 
place  that  it  naturally  would  and  did  flow  over  and  upon  and 

134  Cal.  63,  74. 

(117) 


§  75 


NATURE    AND    E.XTKNT   OF    RIGHT. 


[Ch.  5. 


injure  R.'s  latul,  K.  is  liable  for  the  injmy  so  done.  It  is  no 
excuse  that  he  may  have  sold  the  water  to  miners,  by  whom  it 
was  used  before  it  reached  R.'s  land  and  did  the  injury.  If 
the  miners  thus  contributed  to  the  injury,  and  are  joint  tort- 
feasors with  K.,  this  is  no  defense  to  a  suit  against  him."  The 
same  liability  has  been  imposed  upon  the  owners  of  water-works 
under  like  circumstances,  and  for  similar  injuries  in  other 
cases. ^ 

^See  Ricliardson  v.  Kier,  37  Cal. 
2G3;  Blaistlell  v.  Stephens.  14  Nev. 
17;  Henshawv.  Clark,  14  Cal.  461; 
Grigsby  v.  Clear  Lake  W  Co.,  40 
Cal.  396.  [Waste  Water.  Where  a 
riparian  owner,  for  the  purpose  of 
irrigation,  leads  water  upon  his 
land,  he  cannot  send  down  the  sur- 
plus upon  lands  lying  lower  than 
his  own ;  at  least  in  such  a  manner 
as  to  injure  the  lower  estate.  The 
lower  lands  are  under  a  natural 
servitude  to  receive  the  ordinary 
drainage,  but  this  burden  cannot 
be  increased  by  the  acts  of  the  up- 
per proprietor.  Boynton  V.  Long- 
ley,  (Xev.)6  Pac.  Kep.  437.  A  per- 
son owning  a  ditch,  from  which 
water  escapes  upon  the  premises 
of  an  adjoining  landowner,  can- 
not escape  liability  on  the  ground 
that  such  land-owner  might,  at  a 
small  expense,  have  prevented  any 
damage  by  digging  a  ditch  on  his 
own  land  that  would  have  carried 
off  the  waste  water.  McCarty  v. 
Boise  City  Canal  Co.,  (Idaho.)  10 
Pac.  Rep.  623.  CJianginf/  Channel 
of  Stream.  One  who  changes  the 
course  of  a  natural  stream  of  water, 
and  discharges  it  on  his  neighbor's 
land,  is  liable  to  the  latter  for 
damages.  Vernum  v.  Wheeler,  35 
Hun,  53.  A  person  owning  land 
abutting  on  a  river,  through  which 
a  creek  (lows  and  empties  into  the 


river,  may,  as  against  proprietors 
on  the  other  side  of  the  river, 
change  the  channel  and  mouth  of 
the  creek  upon  his  own  land,  and 
for  his  own  protection  and  conven- 
ience, if,  in  so  doing,  both  in  the 
inception  and  execution  of  the 
work,  he  exercises  reasonable  care 
and  caution  not  to  injure  the  rights 
of  others.  If,  however,  the  oppo- 
site bank  of  the  river  is  subject  to 
inundation  and  overflow  in  case  of 
unusual  but  not  unprecedented 
floods  in  the  river,  such  change  in 
the  channel  and  mouth  of  the 
creek  cannot  rightfully  be  made, 
if  thereby,  in  the  exercise  of  ordi- 
nary prudence  and  foresight,  in- 
creased danger  of  inundation  and 
overflow  on  the  opposite  side  of 
the  river  might  be  anticipated. 
Railroad  Co.  v.  Carr,  38  Ohio  St. 
448.  Dams  and  Bulk- 1  leads.  A  ri- 
parian owner  may  protect  his  land 
from  a  threatened  change  in  the 
channel  of  the  stream,  liable  to  oc- 
cur by  reason  of  the  washing 
away  of  his  bank,  and  in  pursu- 
ance thereof  may  build  a  bulk- 
head as  high  as  was  his  original 
bank  before  it  was  washed  away, 
and  this  will  not  deprive  the  op 
posite  owner  of  anj'  right,  nor  give 
him  legal  ground  for  complaint. 
Barnes  v.  Marshall,  68  Cal.  569,  s. 
c.  10  Pac.  Rep.  115.] 


(118) 


Ch.  5.]  NATURE    AND    EXTENT    OF   RIGHT.  §    76 

§  76.     Discharge  of  mining  debris. 

Another  form  of  the  injury,  for  which  the  courts  have  given 
the  remedy  of  compensatory  damages  or  of  injunction,  consists 
in  such  a  use  and  discharge  of  the  water  that  it  naturally  and 
necessarily  flows  down  upon  the  lands  of  adjoining  proprietors, 
charged  with  mud,  sand,  gravel,  and  other  mining  debris;  which 
material,  being  thus  carried  and  deposited  upon  such  adjacent 
lands,  injures  or  even  destroys  them  for  all  beneficial  uses.^  In 
Nixon  v.  Bear  River,  etc.,  Co.  an  injunction  was  granted  re- 
straining the  defendant  from  allowing  the  water,  mud,  sediment, 
or  sand  collecting  in  its  ditch  or  reservoir,  from  flowing  dowia 
into  the  plaintiff's  garden,  and  ruining  his  crops.  The  court 
said:  "The  instructions  refused  by  the  court  at  the  trial  are 
founded  upon  the  theory  that  in  mineral  districts  of  this  state 
the  rights  of  miners  and  persons  owning  ditches  constructed  for 
mining  purposes  are  paramount  to  all  other  rights  and  interests 
of  a  different  character,  regardless  of  the  time  or  mode  of  their 
acquisition,  thus  annihilating  the  doctrine  of  priority  in  all  cases 
where  the  contest  is  between  a  miner  or  a  ditch-owner  and  one 
who  claims  the  exercise  of  any  other  kind  of  right,  or  the  own- 
ership of  any  other  kind  of  interest.  To  such  a  doctrine  we  are 
unable  to  subscribe,  nor  do  we  think  it  clothed  with  a  plausi- 
bility sufficient  to  justify  us  in  combating  it."  In  Levaroni  v. 
Miller  an  injunction  was  granted  under  very  similar  circum- 
stances, although  the  fact  appeared  or  was  found  that  the  injury 
was  not  done  by  defendants  maliciously  or  unnecessaril}'-,  but 
in  the  ordinary  conduct  of  their  business.  In  another  type  of 
the  same  injury  the  mud,  sand,  gravel,  and  other  debris  are  dis- 
charged by  the  ordinary  mode  of  use  into  a  stream,  and  are 
carried  down  by  the  natural  flow  of  the  current,  and  deposited 

iLogan  V.  Driscoll,  19  Cal.  623;  Cal.  367;  Levaroni  v.  Miller,' 34  CaL 
Wixon  V.  Bear  River,  etc.,  Co.,  24     231. 

(119) 


§   77  NATURE    AND    EXTENT    OF    RIGHT.  [Ch.  5. 

upon  the  lands  of  proprietors  adjoining  the  stream  in  its  lower 
portions,  perhaps  many  miles  below  the  point  of  discharge.* 

§  77.  Effects  of  hydraulic  mining  a  public  nui- 
sance. 
[Within  tlie  last  few  years  a  number  of  cases  have  been  de- 
cided on  the  Pacific  coast,  in  reference  to  the  effects  of  the  sys- 
tem of  hydraulic  mining,  which  threaten  to  interpose  an  effect- 
ual barrier  to  the  further  prosecution  of  that  species  of  indus- 
try. These  decisions  are  of  such  immediate  importance  that 
they  require  a  somewhat  extended  notice.  Their  position, 
however,  may  first  be  briefly  stated  as  follows:  The  discharge 
of  sand,  gravel,  and  other  dcbria  into  the  navigable  rivers  of  the 
state,  as  a  consequence  of  mining  by  the  hydraulic  process,  with 
the  effect  to  ffll  u])  the  beds  of  such  rivers  or  obstruct  the  course 
of  navigation,  is  a  public  nuisance,  which  may  be  enjoined  at 
the  instance  of  the  state  on  the  relation  of  those  injured;  and  if, 
as  a  further  consequence  of  such  operations,  the  sand  and  debris 
is  deposited  on  the  lands  of  riparian  owners,  it  is  a  private  in- 
jury, and  they  may  also  have  relief  by  injunction.  The  first 
case  of  importance  was  that  of  Woodruff"  v.  North  Bloomfield 
Gravel  IVIin.  Co.,  decided  in  the  United  States  circuit  court  for 
the  district  of  California  in  1884.^  The  facts  were  stated  as  fol- 
lows: The  Yuba  river  rises  in  the  Sierra  Nevada  mountains,  and, 
after  flowing  in  a  westerly  direction  about  twelve  miles  across 
the  plain  after  leaving  the  foot-hills,  joins  the  Feather.  At  the 
junction,  within  the  angle  of  these  two  rivers,  is  situated  the 
city  of  Marysville,     The  Feather  thence  runs  about  thirty  miles, 

^Robinson  v.    Black   Diamond,  ronce,  T7 Me.  297;  Red  River  Roller 

etc.,  Co.,  50  Cal.  401,  and  57  Cal.  I^Illls  v  "Wright,  30  Minn.  249,  15 

412,  s.  c.  40  Amer.  Rep.  118;  Wood-  N.  W.  Rep.  1G7. 

ruff  V.  North  Bloomfield,  etc.,  Co.,  29  gawy.  441,  s.  c.  18  Fed.  Rep. 

8  Sawy.  628,  s.  c.  16  Fed.  Rep.  25;  753. 
and    see  Lockwood  Co.  v.  Law- 

(120) 


Ch.  5.]  NATURE    AND    EXTENT   OF    RIGHT.  §   77 

and  empties  into  the  Sacramento.  These  three  rivers  were  orig- 
inally navigable  for  steam-boats  and  other  vessels  for  more  than 
a  hundred  and  fifty  miles  from  the  ocean,  at  least  as  far  as 
Marysville;  the  Sacramento  being  navigable  for  the  largest-sized 
steamers.  The  defendants  have  for  several  years  been  and  they 
are  still  engaged  in  hydraulic  mining,  to  a  very  great  extent,  in 
the  Sierra  Nevada  mountains,  and  have  discharged  and  are  dis- 
charging their  mining  debris\-^-r ocks,  pebbles,  gravel,  and  sand-, 
— to  a  very  large  amount,  into  the  head-waters  of  the  Yuba, 
whence  it  is  carried  down,  by  the  ordinary  current  and  by  floods, 
Into  the  lower  portions  of  that  stream,  and  into  the  Feather  and 
the  Sacramento.  The  debi-is  thus  discharged  has  produced  the 
following  effects:  It  has  filled  up  the  natural  channel  of  the 
Yuba  above  the  level  of  its  banks,  and  of  the  surrounding  coun- 
try, and  also  of  the  Feather  below  the  mouth  of  the  Yuba,  to 
the  depth  of  fifteen  feet  or  more.  It  has  buried  with  sand  and 
gravel,  and  destroyed,  all  the  farms  of  the  riparian  owners  on 
either  side  of  the  Yuba,  over  a  space  two  miles  wide  and  twelve 
miles  long.  It  is  only  restrained  from  working  a  similar  de- 
struction to  a  much  larger  extent  of  farming  country  on  both 
sides  of  these  rivers,  and  from  in  like  manner  destroying  or  in- 
juring the  city  of  Marysville,  by  means  of  a  system  of  levees, 
erected  at  great  public  expense  by  the  property  owners  of  the 
county,  and  inhabitants  of  the  city,  which  levees  continually 
and  yearly  require  to  be  enlarged  and  strengthened  to  keep  pace 
with  the  increase  in  the  mass  of  debris  thus  sent  down,  at  a 
great  annual  cost,  defrayed  by  means  of  special  taxation.  It 
has  polluted  the  naturally  clear  water  of  these  streams  so  as  to 
render  them  wholly  unfit  to  be  used  for  any  domestic  or  agri- 
cultural purposes  by  the  adjacent  proprietors.  It  has,  to  a  large 
extent,  filled  the  beds  and  narrowed  the  channels  of  these  riv- 
ers, and  the  navigable  bays  into  which  they  flow,  thereby  less- 
ening and  injuring  their  navigability,  and  impeding  and  en- 

(121) 


§   77  NATUUK    AiND    EXTENT  OF    RIGHT.  [Ch.  5. 

dangcring  their  navigation.  All  these  effects  have  been  con- 
tinually increasing  during  the  past  few  years,  and  their  still 
further  increase  is  threatened  by  the  continuance  of  the  defend- 
ants' said  mining  operations.  On  this  state  of  facts  it  was  held 
that  the  acts  complained  of,  unless  authorized  by  some  law,  con- 
stituted a  public  and  j)rivate  nuisance,  and  might  be  enjoined. 
The  defendants,  first  seeking  the  support  of  legislation  for 
their  acts,  alleged  that  both  congress  and  the  legislature  of  Cal- 
ifornia had  authorized  the  use  of  the  navigable  waters  of  the 
Sacramento  and  Feather  rivers  for  the  flow  and  deposit  of  min- 
ing debris;  and,  having  so  authorized  their  use,  all  the  acts 
complained  of  were  lawful,  and  the  results  of  those  acts  could 
not,  therefore,  be  a  nuisance,  public  or  otherwise.  "It  is  not 
pretended,"  said  the  court,  "that  either  congress  or  the  legisla- 
ture of  California  has  anywhere,  in  express  terras,  provided  that 
the  navigable  waters  of  the  state  may  be  so  used,  but  this  au- 
thority is  sought  to  be  inferred  from  the  legislation  of  both 
bodies,  recognizing  mining  as  a  proper  and  lawful  employment, 
and  encouraging  this  industry,  knowing  that  mining  of  the  kind 
complained  of  could  only  be  carried  on  successfully  by  discharg- 
ing the  debris  into  the  streams  in  the  mining  regions,  which 
must,  from  the  necessity  of  the  case,  find  ite  wa}'  into  the  nav- 
igable watt-rs  of  the  state.  As  to  congress,  it  might  be  sufficient 
to  say  that  it  has  no  authority  wliatever  to  say  what  shall  or  what 
shall  not  constitute  a  nuisance  within  a  state,  except  so  far  as 
it  affects  the  public  navigable  waters,  and  interferes  with  foreign 
or  interstate  commerce,  or  obstructs  the  carrying  of  the  mails. 
Under  its  authorit}'  to  regulate  commerce  between  the  states, 
and  to  establish  post-roads,  congress  may  doubtless  declare  and 
punish  as  such  the  obstruction  of  the  navigable  waters  of  the 
state,  as  a  nuisance  to  interstate  and  foreign  commerce,  but 
there  its  authority  ends.  The  necessary  results  of  the  acts  com- 
plained of  clearly  constitute  a  public  and  private  nuisance,  both 
(122) 


Ch.  5.]  NATURE    AND    EXTENT   OF    RIGHT.  §    77 

at  common  law  and  within  the  express  language  of  the  Civil 
Code  of  California."  The  court  then  proceeded  to  show  that 
these  acts  were  neither  authorized  nor  justified  by  the  act  of 
congress  of  1866,  recognizing  and  regulating  mining  on  the 
public  lands  of  the  United  States;  nor  by  the  river  and  harbor 
bills  of  1880  and  1882,  for  the  improvement  of  the  navigable 
rivers  of  California,  although  these  acts  recognize  the  injuries 
above  described  as  existing  facts;  nor  by  the  legislation  of  Cal- 
ifornia regulating  mining  operations,  or  purporting  to  permit 
the  condemnation  of  lands  for  the  use  of  miners,  (Code  Civil 
Proc.  §  1238,  sub.  5;)  nor  by  the  act  of  1878,  concerning  the 
Sacramento  and  San  Joaquin  rivers,  and  recognizing  the  in- 
juries above  described  from  the  mining  debris.  And  the  court 
took  occasion  to  remark  that  congress  would  have  no  power, 
even  by  express  statute,  to  authorize  a  public  nuisance  destroying 
or  materially  obstructing  the  navigability  of  the  streams  within 
a  state,  for  purposes  wholly  unconnected  with  the  subjects  of 
commerce  or  post-roads.  Further,  if  there  were  any  statute  of 
the  state  of  California  expressly  authorizing  the  acts  of  the  de- 
fendants, and  the  injuries  caused  by  them,  it  would  be  in  con- 
flict with  the  fourteenth  amendment  of  the  constitution  of  the 
United  States,  and  with  similar  provisions  in  the  organic  law 
of  the  state.  Such  legislation  would  either  deprive  the  com- 
plainant and  others  of  their  property  without  due  process  of  law, 
or  would  take  or  damage  their  ])roperty  for  an  alleged  public  use 
without  compensation.  Tlie  defendants  were  therefore  stripped 
of  all  color  of  statutory  autliority  for  their  wrongful  acts. 

But  the  defendants  further  claimed  a  right  to  do  the  acts  com- 
plained of  by  prescription.  The  court,  however",  showed  very 
conclusively  from  the  authorities  that  there  can  be  no  such 
thing  as  a  right  to  commit  or  continue  a  i^ublic  nuisance,  ac- 
quired by  prescription.  "It  is  a  familiar  principle  that  no  lapse 
of  time  can  confer  the  right  to  maintain  a  nuisance  as  against 

(123) 


§   77  NATURE    AND    EXTENT    OF    RIGHT.  [Cll.  5. 

the  state.'"  The  last  contention  of  the  defendants  was  that  their 
acts  were  authorized  by  the  customs  of  miners,  which  had  been 
recognized  and  confirmed  by  the  legislation  both  of  the  state 
and  of  congress.  But  the  court  held  otherwise;  showing  that 
a  custom  which  should  authorize  the  acts  complained  of,  if  any 
such  existed,  would  be  "in  conflict  with  the  laws  and  constitu- 
tion of  the  state,"  and  would  therefore  be  illegal  and  void. 
Sucli  is  an  outline  of  this  important  case.  The  opinion — an 
able  and  exhaustive  statement  of  the  law — was  delivered  by 
Judge  Sawyer. 

The  next  of  the  cases  to  which  we  have  referred,  and  one  of 
equal  importance,  is  that  of  People  v.  Gold  Run  Ditch  &  Min. 
Co.,  in  the  supreme  court  of  California,  1884.^  We  give  the 
statement  of  facts  in  the  language  of  the  court:  "The  record  of 
the  case  shows  that  the  Gold  Run  Ditch  &  'Slin.  Co.  has  Ijccu 
since  August,  1870,  a  corporation  existing  un<ler  the  laws  of  tlic 
state  of  California,  for  the  purpose  of  mining  by  the  hydraulic 
process,  and  selling  water  to  miners  and  others;  and  that  it  is 
now,  and  its  predecessors  have  been  for  several  years  lust  past, 
in  possession  of  five  hundred  acres  of  mineral  land,  situated  ad- 
jacent to  the  North  Fork  of  the  American  river,  and  of  certain 
mines  on  said  land,  which  it  works  by  the  hydraulic  process. 
The  natural  surface  of  this  land  lies  about  one  thousand  feet 
above  the  river;  and  all  the  material  of  the  mines  upon  the  land 
— consisting  of  about  twenty  million  cubic  yards  of  material, 
composed  mostly  of  sand,  gravel,  small  stones,  cobbles,  and 
bowlders,  mixed  with  small  particles  of  gold — is  capable  of  be- 
ing worked  oflF  into  the  river.  For  the  purpose  of  mining  this 
tract  of  land  by  the  hydraulic  process,  the  company  has  con- 
ducted to  its  mines,  by  means  of  ditches  and  iron  pipes,  a  large 
quantity  of  water,  which  it  uses,  and  will  continue  to  use,  un- 

» Citing  Wood,  Nuis.  790-792;  Cooley,  Torts,  613.     24  Pac.  Rep.  1152. 

(124; 


Ch.  5.]  NATURE    AND   EXTENT   OF    RIGHT.  §    77 

der  a  vertical  pressure  of  several  hundred  feet,  discharging  wa- 
ter through  '  Little  Giants'  and  '  Monitors,'  and  dumping  all  the 
tailings  from  its  mines  into  the  river.  In  that  manner  it  has 
been  carrjnng  on  its  mining  operations  upon  said  laud  for  about 
eight  3^ears  last  past;  and  up  to  the  time  of  commencing  this  ac- 
tion, and  during  about  five  months  of  each  year  of  said  period, 
has  been  daily  discharging  into  the  said  river  between  four  and 
five  thousand  cubic  3^ards  of  soHd  material  from  its  said  mine, 
to-wit,  of  bowlders,  cobbles,  gravel,  and  sand,  making  a  yearly 
discharge  of  at  least  six  hundred  thousand  cubic  yards,  and  will 
continue  to  discharge  that  quantity  annually  if  the  working  of 
said  mine  be  permitted  to  continue,  and  at  such  rate  it  will  re- 
quire some  thirty  years  to  mine  out  and  exhaust  said  mineral 
land.  Of  the  material  thus  discharged  into  the  river  a  large 
IDortion  has  been  washed,  from  the  place  of  discharge  or  dump, 
down  the  river,  and,  commingled  with  tailings  from  other  hy- 
draulic mines,  and  still  other  material  which  is  the  product  of 
natural  erosion,  has  been  deposited  in  the  beds  and  channels  of 
the  American  and  Sacramento  rivers  and  their  confluents,  but 
mostl}^  in  the  American,  and  upon  lands  adjacent  to  both  rivers. 
The  deposits  of  this  material  upon  the  beds  and  along  the  chan- 
nels of  the  rivers,  and  through  the  Suisun  bay,  and  into  the 
San  Pablo  and  San  Francisco  bays,  have  already  filled  and  raised 
the  beds  of  both  rivers.  The  bed  of  the  American  has  been 
raised  from  ten  to  twelve  feet,  and  in  some  places  more,  and  the 
bed  of  the  Sacramento,  to  a  great  extent  below  the  mouth  of  the 
American,  from  six  to  twelve  feet.  In  consequence,  the  beds 
of  the  two  rivers  have  shallowed,  and  their  channels  widened, 
so  that  the  depths  of  the  rivers  have  greatly  lessened,  and  their 
liability  to  overflow  has  been  materially  increased,  causing  the 
frequent  floods  to  extend  their  area,  and  to  be  more  destructive 
than  they  otherwise  Avould  have  been,  and  covering  thousands 
of  acres  of  good  land  in  the  Sacramento  valley  with  mining  de- 

(125) 


§  77  NATURE  AND  EXTENT  OF  RIGHT.         [Ch.  5. 

bris.  And  as  the  rivers  are  at  all  times  carrying  in  suspension 
the  ligliter  earthy  matter  from  the  mines,  and  washing  down 
the  heavier  debiis,  they  are  likely  to  fill  more  rapidly  in  the 
future  in  proportion  to  the  quantity  of  hydraulic  tailings  than 
in  the  past,  and  to  cause  much  further  and  greater  injury  in 
the  future  to  large  tracts  of  land;  prolsably  rendering  them, 
within  a  few  years,  unfit  for  cultivation  and  inhabitancy.  Be- 
sides, the  discharge  from  the  mines  so  fouls  the  water  of  the 
American  river  at  all  points  below  as  to  make  it  unfit  for  any 
domestic  use  by  the  inhabitants.  And,  from  the  same  cause, 
the  navigation  of  the  Sacramento  river  has  been  so  greatly  im- 
paired that  the  river,  which,  until  the  year  1862,  was  navigated 
as  far  as  the  city  of  Sacramento  without  difficulty  by  steamers 
of  deep  draught,  to-wit,  by  boats  drawing  nine  or  ten  feet  of 
water,  has  been,  since  the  year  1862,  innavigable  as  far  as 
the  city  of  Sacramento  by  boats  of  deep  draught,  except  during 
high  water,  instead  of  at  all  times,  as  formerly.  And  there  is 
imminent  danger,  if  the  acts  of  the  defendant  and  others  en- 
gaged in  hydraulic  mining  are  allowed  to  continue,  that  the 
beds  and  channels  of  the  lower  portion  of  the  American  river, 
and  of  the  Sacramento  river  below  the  mouth  of  the  American, 
will  be  so  filled  and  choked  up  by  tailings  and  other  deposits 
that  said  rivers  will  be  turned  from  their  channels,  cutting  new 
water-ways,  injuring  or  destroying  immense  tracts  of  land,  and 
probably  will  result  in  greatly  impairing  the  navigability  of  the 
Sacramento  river." 

The  court  held  that  a  perpetual  injunction  against  the  hy- 
draulic operations  of  the  defendant  was  rightly  issued,  inas- 
much as  the  acts  complained  of  constituted  a  public  nuisance. 
"As  a  navigable  river,"  said  McKee,  J.,  "the  Sacramento  is  a 
great  public  highway,  in  which  the  people  of  the  state  have 
paramount  and  controlling  rights.  These  rights  consist  chiefly 
in  a  right  of  property  in  the  soil,  and  a  right  to  the  use  of  the 
(126) 


Ch.  5.]  NATURE    AND    EXTENT   OF    RIGHT.  ■        §  77 

water  flowing  over  it,  for  the  purposes  of  transportation  and 
commercial  intercourse.  The  soil  of  a  navigable  river  is  the 
alveus  or  bed  of  the  river;  the  river  itself  is  the  water  flowing 
in  its  channel.  An  unauthorized  invasion  of  the  rights  of  the 
public  to  navigate  the  water  flowing  over  the  soil  is  a  public 
nuisance;  and  an  unauthorized  encroachment  upon  the  soil  it- 
self is  known  in  law  as  a  purpresture.  *  *  *  Great  water 
highways  belong  to  the  same  class  of  public  rights,  and  are  gov- 
erned by  the  same  general  rules  applicable  to  highways  upon 
land.  Any  contracting  or  narrowing  of  a  public  highway  on 
land  is  a  nuisance,  and  all  unauthorized  intrusions  upon  a 
water  highway  for  purposes  unconnected  with  the  rights  of  nav- 
igation or  passage  are  nuisances.  *  *  *  To  make  use  of 
the  banks  of  a  river  for  dumping  places,  from  which  to  cast  into 
the  river  annually  600,000  cubic  yards  of  mining  debris,  consist- 
ing of  bowlders,  sand,  earth,  and  waste  materials,  to  be  carried 
by  the  velocity  of  the  stream  down  its  course,  and  into  and 
along  a  navigable  river,  is  an  encroachment  upon  the  soil  of  the 
latter,  and  an  unauthorized  invasion  of  the  rights  of  the  public 
to  its  navigation;  and  when  such  acts  not  only  impair  the  navi- 
gation of  a  river,  but  at  the  same  time  affect  the  rights  of  an  en- 
tire community  or  neighborhood,  or  any  considerable  number 
of  persons,  to  the  free  use  and  enjoyment  of  their  property,  they 
constitute,  however  long  continued,  a  public  nuisance.  *  *  * 
But  it  is  contended  that,  as  the  nuisance  complained  of,  and 
found  by  the  court,  was  the  result  of  the  aggregate  of  mining 
debris  dumped  into  the  stream  by  the  defendant  and  other  min- 
ing comj^anies,  acting  separately  and  independently  of  each 
other,  the  acts  of  the  defendant  cannot  be  joined  with  the  acts 
of  other  mining  companies  to  create  a  cause  of  action  against 
the  defendant." 

But  the  court,  upon  a  review  of  the  authorities,  found  this 
last  position  untenable.     Reference  was  made  to  the  case  of 

(127) 


§   77  NATURE    AND   EXTENT  OK    RIGHT.  [Ch.  5, 

Hillmnn  v.  Newiiigton,  57  Cal.  62,  and  it  was  said:   "This  case 
clearly  recognizes  the  equitable  i)rinciple  that,  in  an  action  to- 
abate  a  public  or  ])rivate  nui-ancc,  all  persons  engaged  in  the 
com  mission  of  the  wrongful  acts  which  constitute  the  nuisance 
may  l^c  enjoined  jointly  or  severally.     It  is  the  nuisance  itself 
which,  if  destructive  of  public  or  private  rights  of  property,  may 
be  enjoined."     The  court  continued:    "But  it  is  also  claimed 
that  the  defendant  has  acquired  the  right  from  custom,  and  by 
prescription  and  tlie  stiitute  of  limitations,  to  use  the  American 
and  Sacramento  rivers  as  outlets  for  its  mining  debris;  and  that, 
in  the  exercise  of  this  right,  it  cannot  be  restrained  in  its  busi- 
ness of  hydraulic  mining,  notwithstanding  the  consequent  inju- 
ries to  those  rivers.     Undoubtedly  the  fact  must  be  recognized 
that  in  the  mining  regions  of  the  state  the  custom  of  making  use 
of  the  waters  of  streams  as  outlets  for  mining  debrishas  prevailed 
for  many  years;  and,  as  a  custom,  it  may  be  conceded  to  have 
been  founded  in  necessity,  for  without  it  hydraulic  raining  could 
not  have  been  economically  operated.     In  that  custom  the  peo- 
ple of  the  state  have  silently  ac(|uicsced,  and,  upon  the  strength 
of  it,  mining  operations,  involving  the  investment  and  expendi- 
ture of  large  capital,  have  grown  into  a  legitimate  business,  en- 
titled, equally  with  all  other  business  pursuits^  in  the  state,  to- 
the  protection  of  the  law.     But  a  legitimate  private  business, 
founded  upon  a  local  custom,  may  grow  into  a  force  to  threaten 
the  safety  of  the  people,  and  destruction  to  public  and  private 
rights;  and,  when  it  develops  into  that  condition,  the  custom 
upon  which  it  is  founded  becomes  unreasonable,  because  dan- 
gerous to  public  and  jjrivate  rights,  and  cannot  be  invoked  ta 
justify  the  continuance  of  the  business  in  an  unlawful  manner. 
Every  business  has  its  laws,  and  these  require  of  those  who  are 
engaged  in  it  to  so  conduct  it  as  that  it  shall  not  violate  the 
rights  that  belong  to  others.     Accompanying  the  ownership  of 
every  sjjecies  of  property  is  the  corresponding  duty  to  so  use  it 
(128; 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §  78 

as  that  it  shall  not  abuse  the  rights  of  other  recognized  owners. 
*  *  *  As  to  the  claim  of  right  derived  from  prescription  and 
the  statute  of  limitations,  it  is  sufficient  to  say  that  the  right  to 
continue  a  public  nuisance  cannot  be  acquired  by  prescription, 
nor  can  it  be  legalized  by  lapse  of  time.  Against  it,  however 
long  continued,  the  state  is  bound  to  protect  the  people;  and  for 
that  purpose  the  attorney  general,  as  the  law  officer  of  the  state, 
has  the  power  to  institute  a  proceeding  in  equity,  in  the  name 
of  the  people,  to  compel  the  discontinuance  of  the  acts  which 
constitute  the  nuisance."' 

In  a  later  case  it  was  held  that  a  corporation  may  be  enjoined 
upon  an  ex  parte  application,  without  notice  to  it,  from  deposit- 
ing in  or  discharging  mining  debris  into  certain  streams,  or  from 
selling  water  to  others  to  be  used  for  the  purpose  of  washing,  by 
the  hydraulic  process,  any  mineral  lands  into  the  channel  of 
said  streams  or  their  tributaries,  though  the  general,  ordinary^ 
and  only  business  of  such  corporation  is  that  of  mining  by  the 
hydraulic  process,  or  of  selling  water  to  others  to  be  used  for 
like  purposes.^] 

§  78.     Impounding  dams. 

[The  hydraulic  mining  companies,  after  the  decisions  referred 
to  in  the  preceding  section,  began  the  erection  of  impounding 
dams  across  the  streams  utilized  by  them,  for  the  purpose  of 
arresting  the  progress  of  the  debris  into  the  rivers  below.  Some 
discussion  has  arisen  in  regard  to  the  sufficiency  ol  these  dams, 
but  the  courts  have  not  yet  formulated  a  definite  rule  on  the 
subject.     Keeping  in  mind,  however,  the  extent  of  the  public 

1  Citing    Pettis    v.    Johnson,   56  Pac.  R.  R.,  61  Cal.  250;  People  v. 

Ind.  139;  Boston  Rollins;  Mills  v.  Stratton,  25  Cal.  242;  Yolo  Co.  v. 

Cambridge,  117  Mass.  396;  Wright  Sacramento,  36  Cal.  193. 

V.  Moore,  38  Ala.  593;  People   v.  ^E^reka  Lake  «&  Yuba  Canal  Co. 

Cunningham,  1  Denio,  524;  Mills  v.    Superior  Court,  66  Cal.  311,  i 

V.  Hall,  9  Wend.  315;  Civil  Code  Pac.  Rep.  490. 
Cal.  §  3490;  Sacramento  v.  Central 

POM.Rip.— 9  (129) 


§  78  NATURE    AND    EXTENT   OF   RIGHT.  [Ch.  5. 

flinl  private  interests  which  are  jeopardized  by  the  system  of  hy- 
drauHc  mining,  tliey  have  held  that  no  dam  for  impounding 
mining  debris,  erected  in  a  mountain  river,  should  be  held  suffi- 
cient to  protect  rii)arian  and  other  proprietors  below,  upon  any 
evidence  not  of  tlie  most  unquestionable  and  satisfactory  char- 
acter. "It  is  for  the  pecuniary  interest  of  hydraulic  miners," 
says  Judge  Sawyer,  "to  get  out  as  much  of  the  precious  metals 
as  possible,  with  the  least  possible  expense.  The  interests  of  the 
moving  party  in  this  matter  are  simply  to  tide  over  the  present, 
and  escape  injunctions  until  its  mines  can  be  worked  out.  What 
happens  afterwards  is  no  concern  of  its.  As  human  nature  is 
constituted,  the  action  of  parties  so  situated,  set  in  motion  by 
an  application  of  the  coercive  powers  of  the  law,  in  the  erection, 
at  their  own  expense,  and  according  to  their  own  ideas,  of  im- 
pounding dams  for  the  sole  protection  of  the  rights  of  those  upon 
whom  they  commit  trespasses,  should  be  scrutinized  with  jeal- 
ous care  by  those  who  administer  the  laws,  and  whose  impera- 
tive duty  it  is  to  see  that  each  man  shall  so  use  his  own  as  not 
to  injure  his  neighbor.  It  may  well  be  doubted  whether  any 
restraining  dam,  however  constructed,  across  the  channels  of  the 
main  mountain  rivers,  of  a  torrential  character,  should  be  ac- 
cepted by  the  courts  as  a  sufficient  protection  to  the  occupants 
of  land  in  the  valleys  below  liable  to  be  injured.  But,  if  any  are 
to  be  accepted,  they  should  only  be  those  the  ample  sufficiency 
of  which  has  been  established  upon  testimony  of  the  most  un- 
questionable and  satisfactory  character.  Nothing  should  be  left 
to  conjecture.  This  is  not  a  matter  of  a  single  dam.  A  rule 
must  be  laid  down  applicable  to  the  entire  gold-bearing  region. 
It  will  be  no  use  to  restrain  one  mine,  if  others  are  allowed 
to  run.  Besides,  it  would  be  unjust.  All  doing  injury  must 
be  stopped  or  restrained  from  contributing  to  further  injury,  or 
uone."'] 

iHardt  v.  Liberty  Hill  Mia.  Co.,  27  Fed.  liep.  788. 
(130) 


Ch.  5.]  NATURE   AND    EXTENT   OF   RIGHT.  §   79 


III.     Extent  of  the  Right  Acquired. 

§  79.     Amount  of  water  which  the  appropriator  is 
entitled  to  use. 

The  amount  of  water  which  an  approiDriator  is  entitled  to  use 
— commonly  designated  as  the  extent  of  his  appropriation — is  a 
question  of  fact  to  be  determined  by  a  jur3^  The  right  of  the 
prior  appropriator  in  this  respect  is  limited  to  the  amount  or 
extent  of  his  actual  appropriation,  as  against  subsequent  appro- 
priator? and  claimants;  and  he  cannot,  after  their  subsequent 
rights  have  attached,  by  changing  the  place  or  nature  of  his  use, 
or  by  enlarging  his  works,  or  otherwise,  extend  his  claim,  or  in- 
crease the  amount  of  water  diverted  or  used,  to  the  prejudice  of 
such  subsequent  parties.^  The  extent  of  the  appropriation  and 
amount  of  water  thereby  taken  may  be  determined  by  the  spe- 
cial purpose  for  which  the  appropriation  was  made;  and  in  such 
a  case  the  appropriator  is  entitled  to  so  much  water  only  as  is  nec- 
essary for  that  purpose;  a  change  of  the  purpose  which  would  in- 
crease the  amount  of  water  diverted  would  not  be  permitted  as 
against  subsequent  claimants.^  Thus,  in  the  case  of  Nevada 
W.  Co.  V.  Powell,  cited  below,  it  was  held  that  where  the  plain- 
tiff had  appropriated  a  portion  of  the  water  of  a  stream,  and 
had  made  a  dam  and  ditch  amply  sufficient  for  his  purpose,  and 
had  thereby  acquired  the  right  to  use  such  portion  only  of  the 
water,  and  in  such  manner  only,  he  cannot  encroach  upon  the 
rights  of  subsequent  appropriators  by  extending  his  use  beyond 
the  first  appropriation.     By  the  plaintiff''s  erections  and  use  for 

1  Nevada  W.  Co.  v.  Powell,  34      Sabron,  10  Nev.  217;  Atchison  v. 
Cal.  109;  Ortman  v.  Dixon,  13  Cal.      Peterson,  20  Wall.  514. 
33;  Higgins  v.  Barker,  42  Cal.  233;         s^evada  W.  Co.  v.  Powell,  34 
Davis  V.  Gale.  32  Cal.  26;  Lobdell      Cal.  109;  McKinney  v.  Smith,  21 
V.  Simpson,  2  Nev.  274;  Barnes  v.      Cal.  374;  Barnes  v.  Sabron,  10  Nev 

217. 

(131) 


§    80  NATURE    AND   EXTENT   OF  RIGHT.  [Ch.  5. 

several  years,  other  persons  had  a  right  to  suppose  that  he  had 
thereby  defined  and  determined  his  own  rights  as  to  amount  of 
water,  and  to  act  accordingly  by  appropriating  the  surplus  to 
their  own  uses.  On  the  other  hand,  if  a  prior  appropriation 
has  been  made  of  a  certain  amount  or  quantity  of  the  water,  in- 
dependently of  any  particular  use  or  purpose,  the  appropriator 
may  afterwards,  as  against  subsequent  claimants,  change  either 
the  place  or  the  nature  of  his  use,  provided  such  change  does 
not  increase  the  amount  of  water  diverted  and  used.^ 

§  80.     Carrying  capacity  of  ditch. 

Where  the  prior  appropriation  extends  to  all  the  water  flow- 
ing in  the  stream  at  the  point  of  diversion,  the  appropriator  may 
enlarge  his  ditch  at  pleasure,  and  so  increase  the  amount  actu- 
ally diverted,  and  other  parties  whose  claims  to  the  stream  are 
subsequent  cannot  complain  of  such  enlargement.^  Where  the 
prior  appropriation  extends  only  to  a  portion  of  the  stream,  and 


1  Davis  V.  Gale,  32  Cal.  26;  Kidd  stream,  ou  the  part  of  one  whohaa 

V.  Laird,  15  Cal.  161;  Woolman  v.  conducted  some  water  to  it,  will  be 

Garringer,  1  Mont.  535.     [Where  a  restrained   at  the   suit  of  a  ripa- 

party  has  appropriated  water  for  rian  proprietor,  unless  the  former 

the     purpose    of     irrigation,    the  shows  that  he    has   not  diverted 

amount  of  water  to  which  he  is  en-  from  it  more  water  than  he  led  to 

titled,  as  against  subsequent  ap-  it^     Wilcox  v.  Hausch,  64  Cal.  461, 

propriators,     is     limited     to    the  s.  c.  3  Pac.  Rep.  108.     The   prior 

amount    actually   applied    to  the  appropriatorof  water  has  the  prior 

purposes  of  irrigation.     Simpson  right  to  its  use  to  the  e.xtent,  in 

v.   Williams,  18  Nev.  432,   s.  c.  4  amount  and  time,  of  his  tirst  ap- 

Pac.   Rep.  1213.     The  grantee  of  propriation,  and  (it  seems)  to  the 

an  undivided  half  of  a  sufficiency  extent  to  which  he  was  preparing 

of  water  for   a    certain    purpose  to  use  it.     Lehi  Irrigation  Co.  v. 

takes  by  his  grant  no  more  than  Moyle,  (Utah,)  9  Pac.  Rep.  867.] 

one-half   of    the  whole    quantity  ^j^mes  v.  Williams,  31  Cal.  211. 

of  water  in  the  stream,  whenever  In  Feliz  v.  City  of  Los  Angeles,  58 

such  quantity  is,  by  natural  causes,  Cal.  73,  it  was  held  that  tlie  city 

diminished  below  such  sufficiency,  had  acquired  a  right  to  all  the  wa- 

Dow  V.  Edea.  58  N.  H.  193.     The  ter  of  a  river,  and  that  plaintiff's 

diversion  of  water  from  a  natural  use  was  permissive,  not  adverse. 
(132) 


Ch.  5.]  NATURE    AND   EXTENT   OF    RIGHT.  §   81 

is  determined  by  the  amount  actually  diverted,  the  measure  of 
such  appropriation  and  of  the  appropriator's  right  seems  to  be 
the  quantity  of  water  which  could  actually  be  carried  by  his 
ditch  in  the  size  and  condition  in  which  it  was  when  the  subse- 
quent appropriation  above  him  on  the  stream  was  made.  The 
rule  under  these  circumstances  is  thus  stated  by  the  supreme 
court  of  California:  "He  is  entitled  to  have  the  water  [of  the 
stream  flowing  down  to  his  ditch]  undiminished  in  quantity, 
so  as  to  leave  sufficient  to  Jill  his  ditch  as  it  existed  at  the  time 
the  subsequent  appropriations  above  him  were  made."^  The 
supreme  court  of  Nevada  has  formulated  the  rule  in  somewhat 
more  precise  terms:  "It  seems  that  the  quantity  of  water  appro- 
priated is  to  be  measured  by  the  capacity  of  the  ditch  or  flume 
at  its  smallest  point;  that  is,  at  the  point  where  the  least  water 
-can  be  carried  through  it."^ 

§  81.     True  capacity  of  ditch  the   proper  measure. 

It  may  well  be  doubted,  I  think,  whether  there  is  any  mate- 
rial difterence  between  these  two  modes  of  expressing  the  rule. 
But  the  actual  physical  condition  of  the  ditch  at  the  time  the  use 
of  the  water  by  its  means  began,  and  during  some  period  of  time 
after  such  commencement,  and  the  amount  of  water  actually  di- 
verted and  carried  by  it  at  and  during  these  times,  do  not  alwayj 

*Bear  River,  etc.,  Co.  v.   New  tion,  of  watering  his  stock,  and  ot 

York  M.  Co..  8  Cal.  327.  domestic  uses;  but  if  the  capacity 

^Ophir  Silver  M.  Co.  v.  Carpen-  of  his  ditches  is  not  more  than  suf 

ter,  6  Nev.  393;  4  Nev.  534.     Also  fleient   for  those  purposes,  then, 

in  Barnes  v.  Sabron,  10  Nev.  317,  under  the   facts  of  this   case,  nc 

the  court  held  that  where  the  prior  change  having  been  made  in  the 

appropriator  of  a  stream  has  con-  ditches  since    their  construction, 

structed  ditches  in  order  to  irrigate  and  no  question  as  to  the  right  of 

his    land,  if    the  capacity   of  his  their  enlargement  being  involved, 

ditches  is  greater  than  is  necessary  he  must  be  restricted  to  the  capac- 

to  irrigate  his    farming  land,  he  ity  of  his  ditches  at  their  smallest 

must  be  restricted  to  the  quantity  point, 
needed  for  the  purposes  of  irriga- 

(133) 


§   81  NATURE    AND    KXTENT    OF    RIGHT.  [Cll.  5. 

furnish  an  inflexible  test  or  measure  of  the  extent  of  the  appro- 
priator  s  ri<j;ht.  The  ditch  might  be  so  imperfectly  constructed, 
with  irregular  and  improper  grades,  and  with  incomplete  exca- 
vation, that  it  could  not  actually  carry  so  large  an  amount  of 
water  as  its  general  plan  and  size  rendered  it  capable  of  carry- 
ing, and  as  its  proprietor  had  intended  to  appropriate.  Under 
these  circumstances,  unless  the  use  of  the  ditch  had  continued 
so  long  a  time  as  to  show  an  intention  of  the  appropriator  to 
adopt  it  in  its  existing  imperfect  condition,  the  proprietor  would 
be  entitled  to  perfect  his  ditch  by  removing  obstructions,  im- 
proving the  grades,  and  the  like,  so  that  it  could  actually  carry 
the  amount  of  water  indicated  by  its  general  size  and  character, 
and  originally  intended  to  be  aj^propriated;  and  the  increase  in 
the  actual  flow  of  water  thus  caused  would  not  be  an  invasion 
of  the  rights  of  subsequent  approi)riators,  although  their  rights 
accrued  before  the  improvements  were  made.  The  case  of 
White  V.  Todd's  Valley  W.  Co.^  arose  out  of  such  circumstances. 
The  defendants  had  made  a  ditch  for  mining  purposes;  and  the 
plaintifl' afterwards  made  a  ditch,  taking  water  from  the  same 
stream.  The  plaintiff  complained  because  the  defendants  had 
enlarged  their  ditch,  after  the  plaintiff's  appropriation,  and  had 
thereby  caused  a  diversion  of  a  greater  amount  of  water,  to  the 
plaintiffs  injury,  and  prayed  for  an  injunction.  The  court  held 
that  the  defendants  were  not  restricted  to  the  amount  of  water 
actually  taken  by  their  ditch  at  the  very  beginning  of  its  use,  un- 
less by  its  general  plan,  size,  and  grade  it  was  not  capable  of 
carrying  more  water  than  was  then  actually  taken  by  it.  If  by 
reason  of  obstructions  in  the  ditch,  or  irregularity  of  its  grade 
at  that  time,  it  was  not  capable  at  first  of  taking  so  much  water 
as  its  general  plan  and  size  would  indicate,  the  defendants  would 
have  a  reasonable  time  witliin  which  to  remove  such  obstruc- 
tions or  to  adjust  the  grades,  and  could  then  divert  the  water 

i8Cal.  443. 
(134) 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §  82 

to  the  full  capacity  of  the  ditch.  But  if  the  defendants  contin- 
ued to  take  only  the  original  quantity  of  water  long  enough  to 
indicate  an  intent  to  divert  only  that  amount,  or  if  they  delayed 
for  an  unreasonable  time  to  remove  the  obstructions  or  regulate 
the  grades,  then  they  would  be  restricted  to  the  amount  thus 
actually  taken  at  first,  and  the  plaintiff  would  be  entitled  to  all 
the  residue.  The  rule  laid  down  by  this  decision  is  plainly  con- 
fined, in  its  scope  and  operation,  to  the  very  special  circum- 
stances above  described;  it  can  hardly  be  regarded  as  furnishing 
any  general  test  or  measure  of  the  amount  included  in  a  prior 
appropriation.  A  few  other  cases,  which  deal  only  with  ques- 
tions of  fact  as  to  the  amount  of  water  appropriated,  are  cited 
in  the  foot-note.^ 

IV.     Successive  Appropriators. 

§  82.     Rights  of  subsequent  appropriator. 

In  the  previous  sections,  which  particularly  describe  the  mode 
of  effecting  a  prior  appropriation,  the  rights  of  the  prior  appro- 
priator, and  the  amount  of  water  included  within  a  prior  appro- 
priation, the  relations  of  the  subsequent  appropriators,  and  es- 
pecially the  limitations  or  restrictions  upon  their  rights  growing 
out  of  the  superior  claims  of  the  prior  appropriator,  have  neces- 
saril}'  been  involved  and  stated.  I  shall  not  repeat  the  discus- 
sions of  these  previous  sections,  and  reference  must  be  made  to 
them  in  order  to  obtain  a  full  view  of  the  relations  subsisting 
between  the  prior  and  the  subsequent  appropriators,  and  the 
limitations  placed  upon  the  rights  which  can  be  acquired  by 
the  latter  parties.  In  the  present  section  I  purpose  to  de- 
scribe the  affirmative  rights,  which  may  be  obtained  and  held 
by  subsequent  and  successive  appropriators,  to  divert  and  use 

^Higgins  V.  Barker,  42  Cal.  233;      Stein  Canal  Co.  v.  Kern  Island  Co., 
Eeyuolds  v.  Hosmer,  51  Cal.  205;      53  Cal.  563. 
Dougherty  v.  Haggin,  61  Cal.  305; 

(135) 


§   83  NATURE    AND    EXTENT   OF   RICnT.  [Cll,  5. 

the  waters  of  a  pul)lic  stream  which  have  already  been  appro- 
priated by  the  prior  acts  of  another  party. 

i  83.     Successive  appropriations. 

Whenever  a  certain  person,  A.,  has  made  a  prior  appropria- 
tion at  a  certain  point  on  a  stream,  even  though  of  the  whole 
amount  of  water,  it  has  already  been  shown  that  another  party, 
B.,  may  make  a  subsequent  apj^ropriation  at  a  place  higher  up 
on  the  stream,  may  divert  and  use  the  waters,  and  return  them, 
nndeteriorated  in  quality  and  undiminished  in  quantity,  into 
the  natural  channel  of  the  stream  above  the  head  of  A.'s  ditch, 
and  no  right  of  A.'s  would  thereby  be  infringed,  because  his 
tise  of  the  water  would  not  be  in  any  way  interfered  with.^  This 
particular  case  is  simply  an  instance  of  the  following  general 
doctrine,  which  has  been  firmly  settled  by  numerous  decisions: 

A  i^rior  appropriation  having  been  made  on  a  public  stream, 
the  residue  or  surplus  remaining  of  its  waiters,  not  embraced 
within  the  amount  of  such  prior  appropriation,  may  afterwards 
"be  appropriated,  either  above  or  below  on  the  same  stream,  by 
ether  parties,  if  no  interference  with  the  rights  of  the  prior  ap- 
propriator  is  thereby  caused.  The  doctrine  extends  to  and  ad- 
mits of  a  succession  of  such  appropriators;  and  there  is  no  limit 
to  its  operation,  except  such  physical  limits  as  arise  from  the 
size  of  the  stream  itself  and  the  amount  taken  by  each  claimant. 
Among  the  successive  appropriators,  each  is  in  the  position  of  a 
prior  one  towards  all  who  are  subsequent  to  himself.^     This  gen- 

»'See  ante,  %  55.  ford.  Id.  361;  McKinney  v.  Smith, 

*Stein  Canal  Co.  v.  Kern  Island,  21  Cal.  374:  Ortman  v.  Dixon,  13 

«tc.,  Co.,  53  Cal.  563;  Broderv.  Na-  Cal.  33;  Butte  C.  Co.  v.  Vaughn.  11 

toma  W.  Co.,  50  Cal.  621;  Smith  v.  Cal.  143:  Kelly  v.  Natoma  W.  Co., 

O'Hara,   43  Cal.   371:    Higgins  v.  6  Cal.  105;  Lobdell  v.  Simpson,  3 

Barker.  42  Cal.  233;  Nevada  W.  Co.  Nev.  274;  Proctor  v.  Jennings,  6 

T.  Powell,  34  Cal.   109;    Davis  v.  Xev.  83;  Barnes  v.  Sabron,  10  Nev. 

Gale,  32  Cal.  26;  Hill  v.  Smith,  27  217. 
Cal.  476;   American  Co.  v.    Brad 
(136) 


Oh.  5.]  NATURE    AND    EXTENT   OF    RIGHT.  §   83 

■eral  doctrine  has  been  stated  in  the  following  modes  by  different 
decisions:  "In  controversies  between  prior  and  subsequent  ap- 
propriators  of  water,  the  question  is,  has  the  use  and  enjoyment 
■of  the  water,  for  the  purposes  for  which  the  first  appropriator  claims 
it,  been  impaired  by  acts  of  the  subsequent  claimant?"^  A  de- 
•cree  prohibiting  a  party  situated  on  a  stream  below  the  tiam  at 
the  head  of  a  ditch  belonging  to  another  person  from  diverting 
or  interfering  with  the  water  above  such  dam,  does  not  hinder 
him  from  using  the  surplus  water  which  flows  down  the  stream 
iifter  the  ditch  is  supplied.^  The  surplus  water  of  a  stream, 
after  a  prior  appropriation,  may  be  the  subject  of  a  new  appro- 
priation, and  the  second  approjDriator  will  have  a  paramcomt 
right  to  use  all  the  waters  which  are  not  required  for  the  special 
purposes  of  the  prior  a]">propriator.^  If  a  prior  appropriator  of 
■water  for  mill  purposes  suffers  a  portion  of  the  water,  or  the 
whole  amount  of  it,  after  driving  the  mill,  to  flow  down  its  ac- 
customed channel,  other  parties  below  him  on  the  stream  may 
appropriate  this  residuum,  so  as  to  obtain  a  vested  right  to  its 
use.^  In  Lobdell  v.  Simpson^  the  doctrine  was  briefly  but  com- 
prehensively stated:  "A  second  appropriator  has  a  right  to  have 
the  water  continue  to  flow  as  it  flowed  when  he  made  his  appro- 
priation." The  same  court  said,  in  Proctor  v.  Jennings:^  "A 
person  appropriating  a  water-right  on  a  stream  already  appro- 
priated acquires  a  right  to  the  surplus  or  residuum  which  he  ap- 
propriates; and  those  who  hold  the  prior  rights,  whether  above 
or  below  him  on  the  stream,  can  in  no  way  change  or  extend 
their  use  of  the  water  to  his  prejudice,  but  are  limited  to  the 
rights  enjoyed  by  them  when  he  secured  his  own." 

iHill  V.  Smith,  27  Cal.  476.  ^Ortman  v.  Dixon,  13  Cal.  33. 

2Americaii  Co.  v.  Bradford,  27  6 2  Ne v.  274. 

Cal.  361.  6  6  Nev.  83. 

3McKinney    v.    Smith,  31    Cal. 
374. 

(137) 


§    85  NATIRE   AND    EXTENT   OF    RIGHT.  [Ch.  5. 

§  84.     Periodical  appropriations. 

It  iiKikes  no  dill'crence  in  the  application  of  this  doctrine  how 
the  surphis  or  residue  of  the  water  may  arise.  It  may  be  con- 
stant, resulting  from  an  appropriation  of  a  portion  only  of  the 
water;  or  it  may  be  intermittent,  resulting  from  an  ap])ropria- 
tion  of  all  the  water  during  only  a  part  of  the  time.  If  a  prior 
appropriation  is  of  such  a  character  that  it  only  takes  and  uses 
the  water  on  certain  days  of  the  week  or  month,  a  second  ap- 
propriator  may  acquire  a  vested  and  paramount  right  to  the 
same  amount  of  the  water  flowing  through  the  stream  on  the 
other  days  not  embraced  in  the  prior  claim.  A.  having  appro- 
priated the  entire  water  of  a  stream  to  be  used  only  on  Mon- 
days, Tuesdays,  and  Wednesdays,  B.  may  subsequently  acquire 
an  equally  perfect  right  to  use  the  same  quantity  of  the  water  on 
Thursdays,  Fridays,  and  Saturdays.^  This  rule  is  stated  in  the 
Nevada  case  in  the  most  general  terms:  "If  the  first  appropria- 
tt)r  only  appropriates  a  part  of  the  waters  of  a  stream  for  a  cer- 
tain period  of  time,  any  other  person  may  not  only  appropriate 
a  part  or  the  whole  of  the  residue,  and  acquire  a  right  thereto 
as  perfect  as  that  of  the  first  appropriator,  but  he  may  also  ac- 
quire a  right  to  the  quantity  of  water  used  by  the  first  appro- 
priator at  such  times  as  it  is  not  needed  or  used  by  him." 

§  85.     Conditions   under  which   subsequent  appro- 
priation may  be  effected. 
The  rights  of  the  subsequent  appropriator  conferred  and  pro- 
tected by  this  doctrine  may  exist  and  be  exercised  under  the 
following  different  conditions  of  fact:     (1)  A  subsequent  appro- 

'Smith  V.   O'Hara,  43  Cal.  371;  ing  extraordinary  high  water  or 

Barnes  V.  Sabron,  lONev.  217;  and  freshets,  he  cannot  obtain  an  in- 

see  Lytle  Creek  W.  Co.  v.  Perdew,  junction  against  appropriation  by 

2  Pac.  Rep.  732.     [Where  a  land-  another  of  the  surplus  water  dur- 

owner  appropriates  and  uses  all  ing  freshets.     Edgar  v.  Stevenson, 

the  water  of  a  stream,  except  dur-  (Cal.)  11  Pac.  Rep.  704. J 

(138; 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §    85 

priator  may  always  take  and  use  any  amount  of  water  at  a  place 
higher  up  the  stream  than  the  point  of  the  prior  appropriation, 
and  without  any  reference  to  the  amount  embraced  in  such  prior 
appropriation,  provided  he  returns  all  the  water  after  its  use, 
undeteriorated  in  quality,  to  its  natural  channel  in  the  stream, 
before  it  reaches  the  prior  approjDriator's  place  of  diversion, — 
the  head  of  his  ditch;  since  under  these  circumstances  the  prior 
appropriator  is  in  no  manner  injured.  (2)  When  a  prior  ap- 
propriation includes  only  a  certain  portion  of  the  water  flowing 
in  a  stream, — measured,  for  example,  by  the  capacity  of  the 
ditch, — a  subsequent  appropriator,  at  a  place  higher  upon  the 
stream,  may  always  take  from  the  stream,  use,  and  consume, 
without  returning,  any  quantity  of  its  water,  provided  he  leaves 
flowing  down  the  natural  channel  after  his  own  diversion  a  suf- 
ficient amount  of  the  water  at  all  times  to  meet  the  demands  of 
the  prior  appropriation;  in  other  words,  so  as  not  to  lessen  nor 
interfere  with  the  amount  which  the  prior  appropriator  is  en- 
titled to  draw  off  by  his  means  of  diversion.  (3)  When  a  prior 
appropriator  takes  and  uses  the  whole  or  an}'  portion  of  the  wa- 
ter of  a  stream,  for  milling  or  other  similar  purposes,  by  which 
the  water  is  not  consumed,  and  then  after  such  use  returns  the 
water  to  the  stream  so  that  it  thenceforth  flows  down  its  natural 
channel,  a  subsequent  appropriator  lower  down  the  stream  may 
appropriate  and  obtain  a  vested  right  to  the  whole  or  any  part 
of  the  same  water  so  discharged  and  flowing  down  the  natural 
channel  after  its  former  use.  (4)  When  a  prior  appropriator 
takes  and  uses  a  certain  portion  or  quantity  of  the  water  from  a 
stream,  and  by  the  nature  of  his  use  consumes  the  same  without 
restoring  it  or  any  part  of  it  to  the  stream,  then  the  surplus  or 
residue  of  the  stream  not  so  diverted  but  continuing  to  flow 
down  the  natural  channel,  or  any  part  thereof,  may  be  subse- 
quently appropriated  by  another  party  lower  down  the  stream, 
and  his  rights  of  appropriation  in  such  surplus  or  residue  will 

(139) 


§   86  NATURE   AND    KXTENT    OF    RIGHT.  [Cll.  5. 

be  vested  and  perfect.  (5)  In  all  these  conditions,  a  subsequent 
appropriator  may  appropriate  and  obtain  a  vested  right  to  use 
the  water  during  the  fixed  intervals  of  time  when  it  is  not  taken 
and  used  by  the  prior  appropriation.  All  the  possible  cases 
which  can  arise  may  be  accounted  for  and  explained  by  a  com- 
bination among  the  foregoing  general  conditions  of  fact.  When- 
ever successive  appropriations  have  been  properly  and  lawfully 
made  on  the  same  stream,  each  party  is,  with  respect  to  the  ex- 
tent of  his  appropriation, — the  amount  included  therein, — in 
the  legal  position  of  a  prior  appropriator  towards  all  the  others.^ 

§  86.     Division  of  increase  in  stream. 

In  addition  to  the  general  doctrine  thus  stated  and  illustrated, 
the  following  special  rules,  applying  to  particular  circumstances, 
have  been  the  subject-matter  of  decision.  If  two  persons  suc- 
cessively appropriate  water  of  a  stream  by  means  of  their  ditches, 
and  a  third  person  turns  into  the  same  stream,  at  a  place  higher 
up  than  the  heads  of  both  these  ditches,  additional  water  brought 
by  means  of  his  own  ditch  from  another  and  different  stream, 
without  any  intention  of  recapturing  the  same,  the  water  thus 
discharged  becomes  jntblid  juris, — to  all  intents  a  part  of  the  nat- 
ural waters  of  the  stream  into  which  it  is  emptied;  and  it  be- 
longs to  the  two  appropriators  according  to  their  priority  of  right, 
— the  one  having  made  the  prior  appropriation  is  first  entitled 
to  the  increased  flow  to  the  extent  of  his  appropriation.^ 

A  person  who  had  located  a  mill-site  on  a  stream,  and  appro- 
priated the  water  for  the  purposes  of  his  mill,  sold  and  con- 
veyed all  his  interest  in  the  water  of  the  stream  to  the  proprie- 

1  [Where  old  ditches  are  super-  priations,   and    not   according  to 

seded  by  agreement  by  a  new  one,  their  interests  in  the  new  ditch, 

and  nothing  is  said  in  regard  to  the  Rominger  v.    Squires,  (Colo.)   12 

division  of  the  water,  the  rights  of  Pac.  Rep.  213.] 

the  parties  are  to  be  determined  2  Davis  v.  Gale,  32  Cal.  26. 
according  to  their  original  appro- 

(140) 


Ch.   5.]  NATURE    AND    EXTENT    OF   KIGHT.  §   88 

tor  of  a  ditch  above  him .  Held ,  that  he  had  not  thereby  lost  his 
prior  right  to  the  water  which  still  flowed  down  the  stream  after 
such  sale,  as  against  a  third  party  who  had  appropriated  the 
water  below  him  subsequently  to  his  original  appropriation,  but 
before  his  said  sale  and  conveyance.^ 

§  87.     Wrongful  diversion  of  springs. 

In  the  case  of  Strait  v.  Brown  ^  the  supreme  court  of  Nevada 
decided  a  point  which  may  be  of  much  practical  importance. 
Although  no  distinction,  in  general,  exists  between  waters  run- 
ning under  the  surface  in  defined  channels,  and  those  running 
in  such  channels  upon  the  surface;  and  although  water  perco- 
lating through  the  ground  below  the  surface  is  not  governed  by 
the  same  rules  which  pertain  to  running  streams, — still,  subse- 
quent appropriators  cannot,  as  against  the  prior  appropriator  of 
the  same  stream,  lawfully  acquire  rights  to  the  waters  of  the 
springs  which  constitute  the  source  of  such  stream,  simply  be- 
cause the  means  through  which  the  waters  are  conveyed  from 
the  springs  to  the  stream  are  subterranean,  and  not  well  under- 
stood nor  defined.  In  other  words,  the  subsequent  appropria- 
tors on  a  stream  cannot  cut  off"  and  destroy  or  impair  the  rights 
of  the  prior  appropriators  by  tapping  the  very  springs  them- 
selves which  constitute  the  sources  of  the  stream,  under  color 
of  a  right  to  reach  subterranean  and  percolating  waters.' 

V.     Abandonment  of  Right. 

§  88.     General  doctrine  of  abandonment. 

Many  of  the  cases  heretofore  cited,  and  several  of  the  rules 
formulated  in  the  foregoing  sections,   recognize  the   fact  that 

1  McDonald  v.  Askew.  29  Cal.  200.      Cal.  205.     The  particular  facts  and 
216Nev.  317.  rulings   in  these   cases  have  been 

^For  further  special  applications,      sufficiently  described  under  previ- 

see  Nevada  W.  Co.  v.  Powell,  34      ous  sections. 

Cal.  109;  Reynolds  v.  Hosmer,  51 

(141) 


§  89  NATURE    AND    EXTENT   OF    RIGHT.  [Ch.  5. 

there  may  be  an  abandonnient  of  the  exclusive  right  to  divert  and 
use  water  aciiuired  by  or  resultinj?  from  a  prior  ai3propriation; 
that  such  an  abandonment  may  be  made  either  after  the  prior 
api^ropriation  has  become  perfect  and  complete,  and  the  right  un- 
der it  vested,  or  while  it  is  yet  imperfect  and  incomplete,  and  the 
right  under  it  remains  inchoate;  and,  finally,  that  an  abandon- 
ment may  be  express  and  immediate,  by  the  intentional  act  of 
the  appropriator,  or  may  be  implied  from  his  neglect,  failure  to 
use  due  diligence  in  the  construction  of  his  works,  non-user  of 
them  after  completion,  and  the  like.  The  general  doctrine  con- 
cerning the  effect  of  such  an  abandonment,  at  whatever  time  or 
in  whatever  manner  made,  is  well  settled.  The  prior  appro- 
priator thereby  loses  all  of  his  exclusive  rights  to  take  or  use 
the  water  which  he  had  acquired,  or  might  have  acquired,  by 
his  appropriation;  and  he  cannot,  after  an  abandonment,  reassert 
his  original  right  to  the  same,  or  the  same  amount  of  water,  as 
against  a  second  or  other  subsequent  claimant  who  has  taken 
proper  steps  to  effect  an  appropriation  thereof.  If  there  has 
been  no  subsequent  appropriation  of  the  water  thus  abandoned, 
by  another  party,  the  prior  appropriator  may,  of  course,  regain 
his  former  right,  but  this  can  only  be  done  by  his  properly 
commencing  and  completing  de  novo  the  requisite  steps  in  order 
to  effect  an  appropriation,  as  heretofore  described.  He  is  in  ex- 
actly the  same  situation  as  though  he  had  hitherto  made  no  at- 
tempt to  appropriate  the  water.' 

§  89.     Methods  of  abandonment. 

The  methods  in  which  an  abandonment  may  be  accomplished 
are  various.     Since  the  right  held  by  the  appropriator  is  an  in- 

1  Davis  V.  Gale,  32  Cal.  26;  Bark  due  diligence    in   completing  the 

ley  V.  Tieleke,  2  Mont.  59;  and  see  works,   etc.;  and  concerning    the 

cases  cited  ante,   concerning  the  discharge  of  water  into  the  stream 

mode  of  making  an  appropriation,  without  intent  of  "recapture." 
(142) 


Ch.  5.]  NATURE   AND    EXTENT   OF    RIGHT.  §   89 

terest  inland,  an  incorporeal  hereditament,  it  can  only  be  trans- 
ferred, as  has  already  been  shown,  by  an  instrument  in  writing 
sufficient  to  convey  real  estate.  It  follows  that  a  mere  ^verbal 
sale  and  transfer  of  his  water-right  by  a  prior  appropriator  op- 
erates i/wo  facto  as  an  abandonment  thereof.^  Such  act  shows  an 
unequivocal  intent  on  the  part  of  the  appropriator  to  give  up 
and  relinquish  all  of  his  interest,  and,  as  it  does  not  effect  any 
transfer  thereof  to  the  attempted  assignee  or  vendee,  the  only 
possible  result  is  an  immediate  and  complete  abandonment. 
The  same  result  follows  from  an  attempted  transfer  of  the  water- 
right  by  means  of  an  imperfect  deed  or  instrument  of  convey- 
ance.^ Returning  the  water,  which  has  been  diverted  back  into 
the  natural  channel  of  the  stream  without  the  intent  of  "  recapt- 
uring" it,  would  be  an  express  abandonment  of  all  further 
rights  to  the  use  of  such  water ;  and  the  absence  of  any  intent 
to  "recapture"  would  generally  be  inferred,  it  seems,  unless  the 
returning  of  the  water,  after  its  first  diversion,  was  made  for  the 
purpose  of  using  the  natural  channel  as  a  part  of  the  appropri- 
ator's  ditch  or  canal. ^  Again,  an  abandonment  may  be  inferred 
from  a  neglect  to  use  the  water  for  an  unreasonably  long  time, 
especially  if  the  special  purposes  of  its  original  appropriation 
had  been  fully  accomplished.  Thus,  in  an  important  case  al- 
ready quoted,  the  court,  after  saying  that  the  prior  appropriator 
of  water  for  a  particular  mine  may,  when  he  has  worked  out  and 
abandoned  said  mine,  extend  his  ditch  and  use  the  water  at 
other  points,  without  losing  his  priority,  further  held  that,  where 

1  Smith  V.  O'Hara,  43  Cal.  371.  s^oolman  v.  Garringer,  1  Mont. 

2Barkley  V.  Tieleke,  2Mont.  59.  535;    Davis    v.    Gale,   83  Cal.   26; 

In  both  these  instances,  as  has  al-  Butte  Canal  Co.  v.  Vaughn,  11  Cal. 

ready    been    shown,    no    interest  143.     [A  party  cannot  reclaim  wa- 

passes  to  the  transferees;  they  do  ter  that  he  has  used  and  then  al- 

not  succeed  to  any  jmority  held  by  lowed  to  pass  from  his   control, 

their  assignor;  their  rights  of  pri-  Eddy  v.  Simpson,  8  Cal.  249;  and 

ority  date  only  from  the  time  of  see   Schulz  v.   Sweeny,  (Nev.)  11 

their  own  possession  and  user.  Pac.  Rep.  253.] 

(143) 


§   89  NATURE   AND    EXTENT   OF  RIGHT.  [Cll.  5. 

water  liad  been  approi)riated  for  a  particular  purpose,  and  that 
pur[)(»se  had  been  accomplished,  the  appropriators  dispersed 
and  allowed  a  long  time  to  elapse  without  making  any  use  of  the 
water  under  their  appropriation,  and  finally  sold  the  ditch  to 
otlier  parties  for  a  nominal  sum,  all  these  facts  were  sufficient 
evidence  of  an  aljandoninent  by  them;  in  other  w'ords,  an  aban- 
donment of  their  prior  appropriation  might  be  inferred  from 
such  conduct.  The  court  further  held  that,  when  a  party  has 
abandoned  his  prior  appropriation,  he  cannot,  by  a  sale  and 
conveyance,  revive  his  prior  rights  in  favor  of  his  grantees,  even 
though  the  sale  is  hoiiafide  on  their  part.^  On  the  other  hand, 
the  mere  suspension  of  work  in  constructing  a  ditch  for  a  lim- 
ited and  reasonable  time  would  not  necessarily  be  an  abandon- 
ment of  the  appro priator's  inchoate  right. ^  It  has  already  been 
shown  in  a  previous  section  that  one  who  has  given  notice  of  hi& 
intention  to  appropriate  the  water  of  a  certain  stream,  must  com- 
mence and  prosecute  his  works  unto  completion  with  due  and 
reasonable  diligence,  in  order  to  perfect  his  exclusive  right,  by 
appropriation.  It  seems  to  follow  from  this  affirmative  prop- 
osition that  a  neglect  or  failure  on  his  part  to  use  the  due  and 
reasonable  diligence  so  required  in  constructing  his  works, 
must  necessarily  amount  to  an  abandonment  of  the  intended 
appropriation,  and  of  all  rights  which  could  have  been  acquired 
by  its  means. ^ 


1  Davis  V.  Gale,  32  Cal.  26.     [In  poses  ceases  with  the  exhaustioa 

Lowden  v.  Frey,  67  Cal.  474,  s.  c.  of  the  mine  for  which  it  was  ap- 

8  Pac.    Rep.   31,   the    court  said:  proprialed,'  has  no   application." 

"The  testimony  tends  to  show  that  It  is  not  stated  what  would  be  the 

the  appropriation  of  the  water  by  effect  if  the  water  were  appropri- 

the  defendants  and  their  grantors  aled  for  use  in  one  particular  mine, 

was  formining  purposes  generally,  and  that  mine  became  exhausted.} 

to  be  used  at  various  points.     Un-  ^^tci^jgoQ  y,  Peterson,  1  Mont, 

der  such  circumstances,  the  posi-  561. 

tion  of  the  plaintiff,  that  '  the  right  »  See  ante,  §  53. 
to  the  use  of  water  for  mining  pur- 

(144) 


Ch.  5.]  NATURE  AND    EXTENT    OF   RIGHT.  §   91 

§  90.     Abandonment  by  adverse  user. 

[The  right  of  the  first  appropriator  of  water  on  tlie  public  lands 
may  be  lost  by  the  adverse  possession  of  another;  and  when  such 
other  person  has  had  the  continued,  uninterrupted,  and  adverse 
enjoyment  of  the  water,  or  of  some  certain  portion  of  it,  for  a 
sufficient  length  of  time,  the  law  will  j^resume  a  gijant  of  the 
right  so  held  and  enjoyed  by  him.'  A  failure  to  use  for  a  time 
is  competent  evidence  of  abandomnent;  and  if  such  non-user 
continues  for  an  unreasonable  period  it  may  fairly  create  a  pre- 
sumption of  intention  to  abandon;  but  this  presumption  is  not 
conclusive,  and  may  be  overcome  by  other  satisfactory  proofs.^ 
Thus  where,  in  an  action  to  try  the  title  to  a  certain  water-right, 
the  defendant  denied  plaintiff's  alleged  ownership,  and  set  up 
title  by  adverse  possession,  the  plaintiff,  after  proving  prior  ap- 
propriation in  himself,  might,  in  order  to  defeat  the  defense  of 
the  statute  of  limitations,  show  in  rebuttal  that  the  defendant, 
before  any  bar  of  the  statute  had  attached,  had  acknowledged 
the  plaintiff's  claim,  and  endeavored  to  lease  the  said  water-right 
from  the  plaintiff.^] 

VI.     Review  of  the  System. 

§  91.     This  system  as  a  -w^hole. 

The  foregoing  summary  of  doctrines  and  rules  presents  the 
system  of  water-rights,  based  upon  prior  and  subsequent  appro- 
priations of  streams  and  lakes  situated  within  the  public  do- 

1  Union  Water  Co.  v.  Crary,  25  title  to  realty  under  the  statute  of 

Cal.  504;  Smith  v.  Logan,  18  Nev.  limitations.     Dodge  v.  Harden,  7 

149.     Five  years'  adverse   posses-  Or.  456. 

sion  is  sufficient  to  bar  an  action  ^gjeber  v.  Frink,  7  Colo.  148,  s. 

to   enforce  a  water-right.     Evans  c.  2  Fac.  Rep.  901.     And  see  Dorr 

V.  Ross,  (Cal.)  8  Pac.  Rep.  88.     It  v.    Hammond,   7  Colo.  79,  s.  c.    1 

is  held  in  Oregon  that  non-user  Pac.  Rep.  693. 

works    no    abandonment,    unless  ^Ledu  v.  Jim  Yet  Wa,  7  Pac. 

continued  long  enough  to  give  a  Rep.  731. 

POM. RIP. — 10  (145) 


§  92  NATURE  AND  EXTENT  OF  RIGHT.         [Ch.  5. 

main,  or  lands  belonging  to  the  United  States,  as  that  system 
has  been  built  up  by  judicial  decisions  upon  the  foundation  of 
local  customs  recognized  and  ratified  by  the  legislation  of  con- 
gress. It  is  plain,  upon  an  examination  and  comparison  of  the 
special  rules  formulated  in  the  preceding  sections,  that  the  sys- 
tem, in  theory  at  least,  furnishes  all  the  possible  protection  for 
the  rights  of  subsequent  and  successive  claimants  after  it  has 
once  admitted  that  a  party  can,  by  prior  appropriation,  obtain 
a  prior  and  exclusive  right  to  the  water  of  a  stream  or  lake,  lim- 
ited and  measured  only,  in  its  extent,  by  the  actual  needs  of 
the  particular  purpose  for  which  the  appropriation  is  made. 
The  system  places  an  oljstacle  in  the  way  of  a  prior  appropria- 
tor's  obtaining  an  exclusive  control  of  the  entire  stream,  no  mat- 
ter how  large;  and  secures  the  rights  of  subsequent  appropriators 
of  the  same  stream,  by  requiring  that  a  valid  appropriation  shall 
be  made  for  some  beneficial  purpose,  presently  existing  or  con- 
templated; and  by  restricting  the  amount  of  water  appropriated 
to  the  quantity  needed  for  such  purpose;  and  by  forbidding  any 
change  or  enlargement  of  the  purpose,  which  should  increase  the 
quantity  of  water  diverted  under  the  prior  appropriation,  to  the 
injury  of  subsequent  claimants;  and  by  subjecting  the  prior  ap- 
propriation to  the  effects  of  an  abandonment,  by  which  all  prior 
and  exclusive  rights  once  obtained  would  be  lost.  By  these 
means,  a  party  is,  in  theory  at  least,  prohibited  from  acquiring 
the  exclusive  control  of  a  stream,  or  any  part  thereof,  not  for 
present  and  actual  use,  but  for  future,  expected,  and  specula- 
tive profit  or  advantage.  In  other  words,  a  party  cannot  obtain 
the  monopoly  of  a  stream,  in  anticipation  of  its  future  use  and 
value  to  miners,  farmers,  or  manufacturers. 

§  92.     Defects  of  the  system. 

While  the  theory  thus  appears  to  be  admirable,  the  practical 
workings  of  the  system  may  be  attended  with  some  difhculties, 
(146) 


Ch.  5.]  NATURE    AND    EXTENT   OF   RIGHT.  §   92 

and  they  have  certainly  involved  a  great  amount  of  litigation. 
When  a  prior  appropriator  has  actually  established  himself  on 
a  stream,  and  is  diverting  its  waters  by  ditches,  an  attempt  to 
enforce  the  rights  of  a  subsequent  claimant  may  be  difficult,  and 
may  require  an  expensive  and  protracted  controversy.  The 
prior  appropriator  is  certainly  placed  in  a  position  of  great  ad- 
vantage in  maintaining  his  own  claims,  even  though  unfounded 
and  unlawful,  against  those  who  are  seeking  to  enforce  their  sub- 
sequent and  lawful  rights  to  use  the  water  of  the  stream.  But 
the  principal  defect  of  the  system,  the  one  capable  of  working 
the  greatest  injustice,  is  inherent  in  the  very  theory  itself,  in  its 
fundamental  conception.  This  defect  is  the  total  absence  of  any 
limit  to  the  extent  of  a  prior  appropriation, — to  the  amount  of 
water  which  may  be  taken, — except  the  needs  of  the  purposes 
for  which  it  is  made.  The  prior  appropriator,  in  order  to  carry 
out  a  purpose  regarded  by  the  law  as  beneficial,  of  great  magni- 
tude,— such,  for  example,  as  an  extensive  system  of  hydraulic 
mining,  or  the  irrigation  of  a  large  tract  of  farming  lands,  or, 
doubtless,  the  supply  of  a  municipality, — may  divert  and  con- 
sume, without  returning  to  its  natural  channel,  the  entire  water 
of  a  public  stream,  no  matter  what  may  be  its  size  or  length,  or 
the  natural  wants  of  the  country  through  which  it  flows.  Fur- 
thermore, this  appropriation  may  be  made  by  a  party  who  owns 
no  land  upon  the  banks  of  the  stream,  and  for  a  purpose  situ- 
ated at  any  distance  from  the  stream  itself,  far  beyond  the  region 
to  which  the  stream  naturally  belongs,  and  which  would  natu- 
rally receive  its  benefits.  In  this  manner  the  natural  benefits  of 
a  stream  to  the  lands  situated  upon  its  bank  throughout  its  en- 
tire length  may  he  completely  destroyed,  and  the  natural  rights 
of  all  persons  who  should  afterwards  settle  and  purchase  lands 
adjoining  the  stream  may  he  totally  ignored,  disregarded,  and 
abrogated  by  such  a  prior  appropriation. 

(147) 


§    93  NATURE    AND   EXTENT   OF    RIGHT.  [Ch,  5. 

§  93.     Presumption  that  stream  was  on  public  land. 

Tliis  first  branch  of  the  discussion  may  be  appropriately  ended 
by  the  statement  of  an  important  point  just  decided  by  the  su- 
preme court  of  California,  that,  in  the  absence  of  all  evidence, 
it  will  be  presumed  that  a  stream,  at  the  time  when  its  waters 
were  appropriated,  was  a  public  stream,  and  all  the  lands  on  its 
banks  were  public  lands  of  the  United  States.  There  had  been 
several  successive  appropriations  of  a  stream  called  "Lytle  Creek" 
by  different  parties.  The  court  say:  "There  is  nothing  in  the 
pleadings  or  findings  to  indicate  that,  when  all  the  waters  of 
Lytle  creek  were  appropriated,  any  of  the  lands  by  or  through 
which  the  creek  flows  had  passed  into  private  ownership.  It 
must  be  presumed,  therefore,  that  such  lands  were  public  lands 
of  the  United  States,  and  the  rights  to  the  water  of  Lytle  creek 
acquired  by  prior  appropriations  were  confirmed  by  the  act  of 
congress  of  1866.  The  court  found  that  the  settlement  on  gov- 
ernment land  by  defendant  was  made  after  the  act  of  1866  took 
effect.  Any  rights  which  he  might  acquire,  therefore,  from  the 
government,  would  be  subject  to  the  previously  confirmed  ap- 
propriations of  the  water."'  This  action  was  brought  by  a  prior 
approi)riator  to  restrain  the  defendant,  a  subsequent  appropri- 
ator,  from  an  alleged  unlawful  diversion.  It  appeared  that  there 
were  other  distinct  and  separate  appropriators  who  were  not  par- 
ties to  the  suit.  The  court  made  the  following  important  ruling 
concerning  the  necessary  parties  under  such  circumstances:  "In 
an  action  by  an  appropriator  of  the  water  of  a  certain  stream  to 
restrain  a  defendant  from  diverting  the  same,  when  the  court 
finds  that  the  plaintiff  has  a  separate  title  to  the  use  of  all  water 
for  a  certain  length  of  time  out  of  a  longer  period,  (namely,  'for 

1  Lytle  Creek  W.  Co.  v.  Perdew,  2  Pac.  Rep.  732.  (decided  February 
12,  1884.) 

(148) 


Ch.  5.]  NATURE    AND    EXTENT    OF    RIGHT.  §   93 

one  hundred  and  thirty-two  hours  and  nineteen  minutes  out  of 
each  and  every  three  hundred  and  seventy-two  hours,')  and  that 
other  appropriators  had  a  right  to  the  use  thereof,  but  fails  to 
find  as  to  the  order  in  which  the  persons  interested  in  these  appro- 
priations used  the  water,  or  as  to  the  times  when  the  period 
during  which  the  plaintiff  was  entitled  to  the  exclusive  use  would 
recur,  no  decree  fixing  the  rights  of  the  plaintiff",  or  prohibiting 
the  defendant  from  interfering  therewith,  can  be  rendered,  un- 
less all  the  other  persons  entitled  to  the  use  of  the  waters  of  the 
same  stream  are  before  the  court  as  parties  to  the  action."  The 
judgment  entered  in  favor  of  the  defendant  was  therefore  re- 
versed, and  the  cause  was  remanded,  with  direction  that  the 
court  below  should  order  all  persons  owning  or  claiming  rights 
to  the  use  of  any  of  the  water  of  said  creek  to  be  made  parties 
to  the  action. 

(149) 


§   94  RIGHTS   ON    PRIVATE  STREAMS.  [Ch.  6. 


5  til 


CHAPTER  VI. 
RIPARIAN  RIGHTS  ON  PRIVATE  STREAMS. 


Legislation  on  the  Subject. 

§    94.  Distinction  between  appropriator  and  riparian  owner. 

95.  Application  of  the  common  law. 

96.  Summary  of  statutory  legislation— California. 

97.  Nevada. 
kHCOa^              98.  Montana. 

99.  Colorado. 

100.  Idaho. 

101.  Dakota. 

^  y  102.  New  Mexico. 

Slj-}  -^  103.  Arizona. 

104.  Wyoming. 

105.  Utah. 
The  Effect  of  this  Legislation. 

§  106.  Riparian  rights  abolished. 

107.  Two  distinct  systems. 


Q 


I.     Legislation  on  the  Subject. 

94.     Distinction  betvsreen  appropriator  and  ripa- 
rian o^wner. 

The  preceding  discussion  has  been  exclusively  confined  to  the 


rights  of  appropriating  and  using  the  waters  of  public  streams, 
flowing  entirely  through  the  public  lands  of  the  United  States, 
before  any  private  owner  has  acquired  from  the  government,  by 
patent  or  otherwise,  the  title  to  a  tract  or  tracts  of  land  upon 
their  banks.  All  the  decided  cases  heretofore  cited,  and  all  the 
judicial  opinions,  except  perhaps  a  few  dicta  in  one  or  two  of 
the  very  earliest  California  cases,  have  distinguished  between 
the  appropriation  from  these  public  streams,  and  the  rights  to 
the  water  after  the  land,  or  any  part  of  it,  bordering  on  a  stream, 
has  passed  into  the  ownership  of  private  proprietors.  In  the 
(150) 


Ch.  6.]  RIGHTS    OX    PRIVATE   STREAMS.  §    95 

recent  decisions,  the  court  most  carefully  guards  against  any  in- 
ference that  they  affect  the  rights  of  such  owners,  and  expressly 
distinguishes  between  the  rules  laid  down  governing  the  taking 
and  use  of  water  from  public  streams,  and  those  relating  to  "ri- 
parian proprietors"  and  "riparian  rights,"  properly  so  called.     I 
purpose  now  to  examine  the  position  of  these  "riparian  propri- 
etors," and  to  ascertain,  as  far  as  possible,  what  are  their  "ripa- 
rian rights,"  under  the  law  of  the  Pacific  communities.     If,  be- 
fore any  appropriation  whatever  has  been  made  of  the  waters  of 
a  stream  hitherto  wholly  public,  a  private  person  acquires  frotti      V      ^►t*'^ 
the  government  the  title  to,  and  thus  becomes  the  absolute  •     ;      -'•*«. 
owner  of,  a  tract  of  land  through  which  such  stream  runs,  or    ^    -,     "'' 
even  lying  on  one  of  its  banks,  although  he  makes  no  actual  di-,  '■  .  j 
version  of  the  water,  an  entirely  new  element  is  introduced  into,  .-r.  , 

the  problem.     He  is  clearly  not  embraced  within  the  operations,;  ^  ^^^      ,.,^^;, 
of  the  doctrines  heretofore  explained.     He  is  a  true  "riparian 
proprietor."     His  own  rights  over  the  stream  are  as  complete  .w- 

and  perfect  as  though  all  the  other  lands  on  its  borders  were 
held  by  private  owners.     The  unrestricted  right  of  diverting  and  Ri- 

nsing the  water  for  some  beneficial  purpose  by  any  prior  appro- 
priator  does  not  exist  against  him.  A  fortiori  is  this  so  where 
many  owners  have  acquired  title  to  different  tracts  abutting  on 
the  stream,  and  finally  where  all  the  lands  bordering  on  both 
sides  of  the  stream  through  its  whole  length  have  passed  into 
the  ownership  of  private  proprietors.  There  is  then  presented 
exactly  the  condition  of  circumstances  which  exists  in  England, 
and  in  the  older  and  fully-settled  states  of  the  Union, — the  con- 
dition in  which  the  common-law  doctrines  concerning  riparian 
rights  arose,  and  to  which  they  were  originally  applied. 

§  95.     Application  of  the  common  la"W. 

Assuming  a  stream  to  be  so  situated,  with  the  lands  on  its 
banks  owned  by  private  proprietors,  and  assuming  that  no  pro- 

(151) 


•W: 


§    95  RIGHTS    ON   PRIVATE   STREAM3,  [Ch.  6. 

prietor  has  yet  made  any  actual  diversion  of  its  waters,  the  ques- 
tion is  fairly  presented,  can  any  one  of  these  owners,  by  means 
of  &  prior  appropriation,  acquire  the  right,  as  against  the  others, 
to  divert,  use,  and  consume  any  quantity  of  the  water  which 
may  be  necessary  for  some  beneficial  purpose,  such  as  irrigat- 
ing, mining,  etc.,  and  thus  deprive  all  the  other  proprietors 
bordering  on  the  stream,  above  and  below  him,  of  the  benefits 
and  uses  of  the  stream,  as  may  be  done  by  the  prior  appropri- 
ator  on  a  public  stream?  Or,  on  the  other  hand,  are  the  rights 
of  all  these  proprietors  equal  and  alike,  irrespective  of  any  ap- 
propriation or  diversion  actually  made  by  any  one  of  them ,  and 
are  their  rights  defined,  measured,  and  regulaffed  by  the  com- 
mon-law rules  concerning  riparian  proprietors;  in  other  words, 
are  their  rights,  in  a  true  sense,  the  "riparian  rights"  recognized 
and  protected  by  the  common-law  doctrines?  Or,  finally,  if 
neither  of  these  inquiries  can  be  fully  and  unreservedly  an- 
swered in  the  affirmative,  has  any  other  peculiar  system  of  rules 
applicable  to  such  ])ersons  been  established,  combining  in  some 
measure  the  common-law  doctrines  with  the  sjjecial  doctrines 
touching  the  appropriation  of  public  streams?  Do  the  com- 
mon-law rules  wholly  control?  or  do  the  doctrines  concerning 
public  streams  govern?  or  has  any  other  modified  system  of 
regulations  been  established?  or  is  the  whole  matter  still  left  in 
a  condition  of  uncertainty,  to  be  settled  by  the  courts  or  the 
legislature?  These  are  the  questions  which  must  be  examined, 
and  their  answer,  if  possible,  given.  In  pursuing  this  exam- 
ination, we  must  ascertain — Mrst,  whether  the  statutes  furnish 
any,  and  if  so  what,  answer;  and,  second,  what  conclusions  may 
be  derived  from  judicial  decisions.  I  shall,  therefore,  by  way 
of  introduction,  give  a  summary  of  the  legislation  on  the  sub- 
ject which  has  been  adopted  by  the  varicflis  states  and  territories 
embraced  within  our  discussion. 
(152) 


€h,  6.]  BIGHTS    ON    PRIVATE    STREAMS.  §   96 

§96.     Summary  of  statutory  legislation  —  Califor- 
nia. 

The  Civil  Code  of  California,  which  went  into  effect  on  the 
first  of  Januar}',  1873,  contains  the  following  provisions,  which, 
in  terms,  apply  to  all  streams,  public  and  private.  Their  lan- 
guage being  general,  not  restricted  to  any  class  of  streams,  must, 
■of  course,  be  construed  as  applying  to  all.  It  will  be  noticed, 
however,  that  these  provisions  are  a  mere  statutory  declaration 
or  enactment  of  the  special  rules  which  had  been  previously  set- 
tled by  the  courts  concerning  theapproi:)riation  of  public  streams, 
virtually  as  formulated  in  the  previous  sections  of  this  essa}^ 
The  title  of  the  Code  is  denominated  "Water-Rights,"  and  con- 
tains the  following  sections,  which  I  quote  in  full: 

"Sec.  1410.  The  right  to  the  use  of  running  water  flowing 
in  a  river  or  stream,  or  down  a  canyon  or  ravine,  may  be  ac- 
quired by  appropriation. 

"Sec.  1411.  The  appropriation  must  be  for  some  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  successor 
in  interest  ceases  to  use  it  for  such  a  purpose  the  right  ceases. 

"Sec.  1412.  The  person  entitled  to  the  use  may  change  the 
place  of  diversion,  if  others  are  not  injured  by  such  change,  and 
may  extend  the  ditch,  flume,  pipe,  or  aqueduct  by  which  the 
diversion  is  made  to  places  beyond  that  where  the  first  use  was 
made. 

"Sec.  1413.  The  water  appropriated  may  be  turned  into  the 
■channel  of  another  stream,  and  mingled  with  its  water,  and  then 
reclaimed,  but  in  reclaiming  it  the  water  already  appropriated 
by  another  must  not  be  diminished. 

"Sec.  1414.  As  between  appropriate rs,  the  one  first  in  time 
is  the  first  in  right. 

"Sec.  1415.  A  person  desiring  to  ajDpropriate  water  must  post 
a  notice  in  writing,  in  a  conspicuous  place,  at  the  point  of  in- 
tended diversion,  stating  therein  (1)  that  he  claims  the  water 

(153) 


§   96  RIGHTS   ON    PRIVATE    STREAMS.  [Ch.  6. 

there  flowing  to  the  extent  of  (giving  the  number)  inches,  meas- 
ured under  a  four-inch  pressure;  (2)  the  purposes  for  which  he 
claims  it,  and  the  place  of  intended  use;  (3)  the  means  by 
which  he  intends  to  divert  it,  and  the  size  of  the  flume,  ditch, 
pipe,  or  aqueduct  in  which  he  intends  to  divert  it.  A  copy 
of  the  notice  must,  within  ten  days  after  it  is  posted,  be  re- 
corded in  the  office  of  the  recorder  of  the  county  in  which  it  i& 
posted. 

"Sec.  1416.  Within  sixty  days  after  the  notice  is  posted,  the 
claimant  must  commence  the  excavation  or  construction  of  the 
works  in  which  he  intends  to  divert  the  water,  and  must  prose- 
cute the  work  diligently  and  uninterruptedly  to  completion,  un- 
less temporarily  interrupted  by  snow  or  rain. 

"Sec.  1417.  By  'completion'  is  meant  the  conducting  the 
waters  to  the  place  of  intended  use. 

"Sec.  1418.  By  a  compliance  with  the  above  rules,  the  claim- 
ant's right  to  the  use  of  the  water  relates  back  to  the  time  the 
notice  was  posted. 

"Sec.  1419.  A  failure  to  comply  with  such  rules  deprives  the 
claimants  of  the  right  to  the  use  of  the  water  as  against  a  sub- 
sequent claimant  who  complies  therewith. 

"Sec.  1420.  Persons  who  iiave  heretofore  claimed  the  right 
to  water,  and  who  have  not  constructed  works  in  which  to  di- 
vert it,  and  who  have  not  diverted  nor  applied  it  to  some  useful 
purpose,  must,  after  this  title  takes  effect,  and  within  twenty 
days  thereafter,  proceed  as  in  this  title  provided,  or  their  right 
ceases. 

"Sec.  1421.  The  recorder  of  each  county  must  keep  a  book, 
in  which  he  must  record  the  notices  provided  for  in  this  title." 

All  these  provisions  by  themselves  would  furnish  a  reasona- 
bly clear  and  certain  system  of  rules  applicable  to  all  streams, 
whatever  may  be  thought  of  their  expediency  or  justice;  but 
the  following  and  final  section  turns  the  whole  into  utter  doubt 
(154) 


Ch.  6.]  EIGHTS    ON   PRIVATE   STREAMS.  §    9G 

and  uncertainty,  so  far  as  it  can  appi}'  to  private  streams,  or 
streams  bordering  on  the  lands  of  private  owners.  This  final 
section  is  as  follows: 

"Sec.  1422.  The  rights  of  riparia)i  proprietors  are  not  affected 
by  the  provisions  of  this  title.'" 

I  would  remark,  in  passing,  that  so  far  as  the  title  applies  to 
streams  wholly  public,  on  the  banks  of  which  there  are  as  yet 
no  riparian  proprietors,  and,  of  course,  no  "riparian  rights,"  it 
furnishes  a  system  of  rules  which  must  be  complied  with  by  all 
those  who  seek  to  make  an  appropriation  of  the  water  subse- 
quently to  the  going  into  effect  of  the  statute.  Thus,  for  ex- 
ample, the  contents  of  the  notice  and  the  place  of  posting  are 
definitely  described;  also  the  time  within  which  work  must  be 
commenced  after  posting  the  notice  is  fixed  in  all  cases;  and  the 
work  must  be  prosecuted  "uninterruptedly,"  the  only  causes  of 
interruption  allowed  being  "snow  or  rain."  The  early  decisions 
prescribed  no  such  definite  rule,  but  left  the  time  of  commenc- 
ing the  work,  and  of  prosecuting  it  to  completion,  to  depend 
upon  man}'  other  special  circumstances  of  each  case,  such  as  the 
situation  and  physical  conformation  of  the  countr}',  the  diffi- 
culty of  transportation,  of  obtaining  materials  and  labor,  and 
the  like.  So  far,  therefore,  as  the  title  applies  solely  to  the  ap- 
propriation of  water  from  streams  wholly  public,  it  furnishes 
rules  which  must  be  obeyed,  somewhat  more  definite  and  less 
elastic  than  those  laid  down  by  the  courts;  and  as  to  its  mean- 
ing, force,  and  effect,  in  connection  with  such  streams,  there  seems 
to  be  no  uncertaint}-  nor  difficulty. 

In  addition  to  these  provisions  of  the  Civil  Code,  there  is  a 
statute  called  "An  act  to  promote  irrigation,"^  passed  in  1872. 
This  statute  provides  that,  if  "owners  of  any  body  of  lands  sus- 
ceptible of  one  mode  of  irrigation "  desire  to  irrigate  the  same, 
they  may  take  steps  in  connection  with  the  board  of  supervisors 

iSt.  1871-72,  pp.  945-948. 

(155) 


§    96  RIGHTS    ON    PRIVATE    STREAMS.  [Ch.  6. 

by  which  the}'  become  an  association  for  irrigating  purposes. 
They  may  make  by-laws  for  the  appointment  of  trustees,  who 
have  general  management  of  their  afiiairs,  and  for  the  construc- 
tion and  maintaining  of  irrigating  works.  The  powers  and  duties 
of  these  trustees  are  defined.  Provisions  are  made  for  assess- 
ments upon  the  members  of  the  association,  for  the  purpose  of 
defraying  the  cost  of  constructing  and  maintaining  the  works. 

"Sec.  21.  The  trustees  may  acquire,  by  purchase,  all  prop- 
erty necessary  to  carry  out  and  maintain  the  system  of  irriga- 
tion provided  for. 

"Sec.  22.  The  trustees  may  acquire  by  condemnation  (1) 
the  right  to  the  use  of  any  running  water  not  already  used  for 
culinary  or  domestic  purposes,  or  for  irrigating,  milling,  or  min- 
ing purposes;  (2)  the  right  of  way  for  canals,  drains,  embank- 
ments, and  other  works  necessary,"  etc. 

"Sec.  23.  The  provisions  of  title  7,  part  3,  of  the  Code  of 
Civil  Procedure,  (concerning  the  condemnation  of  private  prop- 
erty for  public  uses,)  are  applicable  to  and  the  condemnation 
herein  provided  for  must  be  made  thereunder." 

It  is  further  provided  that  parties  owning  the  whole  district 
to  be  irrigated  may  proceed  as  above  described,  without  appoint- 
ing any  trustees;  that  is,  may  manage  the  whole  by  themselves. 
This  act  is  declared  not  to  extend  to  the  counties  of  Fresno,  Kern, 
Tulare,  and  Yolo. 

It  is  very  plain  that  this  statute  does  not  contemplate  nor 
recognize  any  right  of  land-owners  to  appropriate  the  waters  of 
private  streams;  that  is,  of  streams  running  through  or  adjacent 
to  lands  of  private  owners.  The  "riparian  rights"  of  such  own- 
ers are  most  certainly  assured  and  protected;  for  the  owners  de- 
siring to  appropriate  the  water  of  such  a  stream  must  proceed 
to  condemn  it  under  the  right  of  eminent  domain,  and  must  of 
course  pay  compensation;  and  the  only  parties  who  could  be 
compensated  are  the  owners  of  lands  on  the  banks  ot  the  stream, 
(156; 


Ch.  6.]  EIGHTS    ON  PRIVATE    STREAMS.  §    98 

whose  "riparian  rights"  to  use  its  waters  would  be  invaded. 
Such  riparian  rights,  like  all  other  rights  of  private  property, 
are  held  subject  to  the  state's  power  of  eminent  domain. 

§  97.     Nevada. 

The  only  legislation  of  this  state  bearing  on  the  subject,  which 
I  have  found,  is  contained  in  certain  sections  of  the  compiled 
laws  which  permit  the  construction  of  flumes  or  ditches  for  car- 
rying water.  Parties  may  construct  a  ditch  or  flume  across 
private  land,  and  to  that  end  may  take  such  land  by  right  of 
eminent  domain,  on  paying  just  compensation  to  the  owner 
thereof;  the  amount  of  the  compensation  to  be  determined  in  a 
manner  and  by  a  proceeding  described.  This  act  shall  not  in- 
terfere with  an}'  prior  or  existing  claim  or  right. ^  The  statute 
makes  no  allusion  to  the  appropriation  of  or  acquisition  of  title 
to  the  water  to  be  conducted  by  such  ditches  or  flumes. 

§  98.     Montana. 

The  legislation  of  this  territor}'-  is  in  complete  derogation  of 
the  common-law  "riparian  rights."  It  will  be  noticed  that  the 
lands  for  which  it  provides  the  use  of  water  may  be  situated 
anywhere  within  the  territory.  Their  situation  on,  near,  or  at 
a  distance  from  streams  is  wholly  immaterial.  I  give  an  ab- 
stract of  the  provisions,  only  quoting  the  exact  language  of  the 
most  important  and  fundamental  provisions.^ 

Sec.  731.  Any  person  or  corporation  owning  or  having  a  pos- 
sessory title  to  any  agricultural  land  "shall  be  entitled  to  the 
use  and  enjoyment  of  the  waters  of  the  streams  and  creeks  in 
said  territory,  for  the  purposes  of  irrigation  and  making  said 
land  available  for  agricultural  purposes,  to  the  full  extent  of  the 
soil  thereof."     Proviso,  when  by  a  prior  appropriation  any  per- 

1  Comp.  Laws  Nev.  1873,  §§  3852-  2  Rev.  St.  Mont.  1879,  p.  563,  §§ 
3855.  731-741. 

(157) 


§    08  RIGHTS   ON    PRIVATE   STREAMS.  [Ch.  6. 

son  Ims  diverted  all  the  water  of  a  stream,  or  so  much  thereof 
that  there  is  not  an  amount  left  sufficient  for  those  having  a 
subsequent  right  thereto  for  irrigation,  then  any  surplus  left  by 
said  prior  appropriator  shall  be  turned  back  into  the  stream  for 
tlie  use  of  subsequent  claimants,  with  a  penalty  in  the  form  of 
damages  for  a  neglect  to  do  so  after  demand  made. 

Sec.  732.  Any  such  person  or  corporation  owning  land,  when 
there  is  no  available  water  thereon,  or  when  it  is  necessary  to 
rai.se  the  water  of  "said  stream,"  so  as  to  irrigate  said  land,  or 
when  said  lands  are  too  far  removed  from  said  streams  to  use 
them,  said  persons,  etc.,  shall  have  a  right  of  way  across  any 
tract  of  land  for  ditches,  canals,  flumes,  etc. 

Sec.  733.  Such  right  only  extends  to  the  digging  ditches, 
etc.,  across  the  land  of  another,  as  may  be  necessary. 

Sec.  734.  All  controversies  between  different  claimants  of 
water  shall  be  determined  by  the  dates  of  their  respective  ajD- 
propriations. 

Sec.  735.  All  waters  of  streams  arc  so  available  to  the  full 
capacity  thereof  for  irrigating,  "without  regard  to  deterioration 
in  quality  or  diminution  in  quantity,"  so  as  not  to  affect  the 
rights  of  a  prior  appropriator;  but  in  no  case  can  water  be  di- 
verted from  the  ditches,  etc.,  of  such  apj^ropriator. 

Sec.  736.  Any  person  digging  a  ditcli,  etc.,  under  section 
732,  and  thereby  injuring  the  lands  of  another,  shall  be  liable 
in  damages  to  the  injured  party. 

Sec.  737.  This  act  shall  not  impair  rights  already  acquired. 

Sec.  738.  Nor  shall  this  act  prevent  the  appropriation  of  said 
streams  for  mining,  manufacturing,  and  other  beneficial  pur- 
poses, and  the  right  to  appropriate  for  such  purposes  is  hereby 
declared  and  enforced. 

Sec.  739.  Persons  constructing  ditches  across  public  high- 
ways must  repair  the  same. 

Sec.  740.  Penalty  for  violation  of  last  section. 
(158) 


Ch.  6.]  RIGHTS   ON   PRIVATE   STREAMS.  §  99 

Sec.  741.  AH  controversies  respecting  rights  to  water  for  any 
purposes,  and  the  rights  of  parties  to  use  water,  shall  be  de- 
termined by  the  dates  of  their  respective  appropriations,  "with 
the  modifications  heretofore  existing  under  the  local  laws,  rules, 
or  customs,  and  decisions  of  the  supreme  court  of  said  territory." 

The  same  statutes,  in  the  chapter  concerning  corporations, 
authorize  the  formation  of  corporations  for  the  purpose  of  tak- 
ing and  conducting  water  from  streams  for  various  beneficial 
purposes.^  The  most  recent  volume  of  Session  Laws  also  con- 
tains the  following  provisions:  An  act  of  congress^  declaring 
that  all  non-navigable  streams  on  the  public  land  in  the  terri- 
tor}' shall  be  free  and  open  for  appropriation  for  irrigation,  min- 
ing, and  other  purposes,  subject  to  existing  rights;  also  an  act 
of  the  territorial  legislature  providing  a  penalty  for  diverting 
water  by  one  not  entitled,  to  the  injury  of  another.^ 

§  99.     Colorado. 

The  statutes  of  this  state,  in  their  latest  revision,  also  contain 
an  elaborate  system  of  rules  concerning  the  use  of  water  for  ir- 
rigation, which  resembles  in  its  essential  features  that  of  Mon- 
tana. It  will  be  sufficient  for  my  purposes  to  give  a  brief  ab- 
stract of  its  provisions,  quoting  the  exact  language  only  of  those 
which  are  fundamental.* 

Sec.  1711.  "All  persons  who  claim,  own,  or  hold  a  possess- 
ory right  or  title  to  any  land  or  parcel  of  land  within  the  bound- 
aries of  the  state  of  Colorado,  where  these  claims  are  on  the 
bank,  margin,  or  neighborhood  of  any  stream  of  water,  creek, 
or  river,  shall  be  entitled  to  the  use  of  the  water  of  said  stream, 
creek,  or  river,  for  the  purposes  of  irrigation,  and  making  said 

1  Rev.  St.  Mont.  1879,  pp.  456,  457,  »Id.  p.  113,  §§  1,  2. 

§§271-375.  *Gen.   St.   Colo.  1883,  pp.  560- 

2Sess.  Laws  Mont.   1883,  p.  27;  587,  g§  1711-1812. 
Act  44th  Coug.  2d  Sess.  c.  107. 

(159) 


§  99  RIGHTS   ON   PRIVATE   STREAMS.  [Ch.  6. 

claims  available,  to  the  lull  extent  of  the  soil,  for  agricultural 
purpusL'S." 

Sec.  1712.  When  any  such  person,  as  mentioned  in  the  last 
section,  "has  not  sullicient  length  of  area  exj^osed  to  said  strcani 
to  obtain  a  sullicient  fall  of  water  to  irrigate  his  land,  or  that  his^ 
farm,  etc.,  is  too  far  removed  from  said  stream,  and  that  he  has 
no  water  facilities  on  those  lands,  he  shall  be  entitled  to  a  right 
of  way  through  the  farms  or  tracts  of  land  which  lie  between 
him  and  said  stream,  or  the  farms  or  tracts  of  land  which  lie 
above  and  below  him  on  said  stream,  for  purposes  hereinbefore 
mentioned." 

Sec.  1713.  The  right  of  way  given  by  the  last  section  only 
extends  to  the  construction  of  a  ditch  or  canal  sufficient  for  the 
purpose  of  carrying  the  water  required. 

Sec.  1714.  If  the  amount  of  water  is  not  sufficient  to  furnish 
a  constant  supply  to  all  the  community  using  a  ditch  or  canal, 
provision  is  made  for  allotting  it  to  different  consumers  on  al- 
ternate days  or  times. 

Sec.  1715.  If  the  owners  of  tracts  of  land  refuse  to  allow  ditch- 
owners  a  right  of  way,  the  right  may  be  obtained  by  coudenma- 
tion,  under  the  power  of  eminent  domain.^ 

Sees.  1716-1720.  Special  provisions  regulating  the  use,  main- 
tenance, repair,  etc.,  of  ditches. 

Sec.  1721.  The  ditches  herein  provided  for  are  for  irrigation 
only. 

1  [In  Colorado,  when  a  person,  by  constructing  such  ditch,  the 
without  initiating  any  steps  under  constitutional  and  statutory  re- 
pre-emption  or  other  laws  to  pro-  quirements  are  complied  with, 
cure  title  to  public  lands,  places  Knoth  v.  Barclay,  8  Colo.  300,  s. 
improvements  thereon,  and  an-  c.  6  Pac.  Rep.  924.  The  Colorado 
other  desires  to  construct  his  irri-  constitution,  art.  16,  §  6,  provides 
gating  ditch  over  or  across  such  that  "the  right  to  divert  unappro- 
lahds,  if,  by  a  proper  proceeding,  priated  waters  of  any  natural 
full  compensation  is  determined  stream  to  beneficial  uses  shall 
and  is  paid  for  all  damage  or  in-  never  be  denied.  Priority  of  ap- 
jury  to  the  improvements  caused  propriation  shall  give  the  better 
(IGO) 


Ch.  6.]  RIGHTS    ON    PRIVATE   STREAMS.  §   99 

Sec.  1722.  In  case  of  a  deficiency  in  the  supply  of  water, 
provision  is  made  for  regulating  its  pro  rata  distribution  among 
the  consumers  entitled.  Additional  sections  provide  for  the 
formation  and  management  of  public  irrigation  districts;  for 
the  defraying  the  expenses  of  constructing,  maintaining,  repair- 
ing, etc.,  the  ditches  therein;  for  the  regulation  of  the  water 
supply  and  distribution;  for  the  rates  of  charge,  etc. 

Sees.  1762-1801.  An  elaborate  system  is  provided  for  the 
adjudication  of  rights  of  priority  among  different  appropriators, 
partly  by  means  of  special  proceedings,  and  partly  by  means 
of  ordinary  actions.^ 

Another  portion  of  these  statutes  authorizes  the  formation  of 
corporations  to  take  and  convey  the  water  of  streams  for  mines, 
mills,  irrigation,  etc.^ 

Sec.  309.  Such  corporations  "shall  have  the  right  of  way 
over  the  line  named  in  their  certificates,  [of  incorporation,]  and 
shall  also  have  the  right  to  run  the  water  of  the  stream  or 
streams  named  in  the  certificate  through  their  ditches."  Pro- 
viso, that  water  shall  not  be  diverted  from  any  stream  to  the 
detriment  of  any  person  or  persons  who  may  have  priority  of 
right.^ 

right  as  between  those  using  the  Pac.  Rep.  143,  the  court  had  under 
water  for  the  same  purpose.  "  Un-  consideration  Gen.  St.  Colo.  §  1738 
der  this  clause  it  is  held  that,  while  et  seq.,  ("An  act  to  regulsfte  the  use 
the  legislature  cannot  prohibit  the  of  water  for  irrigation,  and  pro- 
appropriation  or  diversion  of  wa-  viding  for  settling  the  priority  of 
ter,  for  useful  purposes,  from  nat-  right  thereto,  and  for  payment  of 
ural  streams  upon  the  public  do-  the  expenses  thereof,  and  for  pay- 
main,  it  has  the  pow^er  to  regulate  ment  of  all  costs  and  expenses  in- 
the  manner  of  such  appropriation  cldent  to  said  regulation  and  use, ") 
or  diversion.  Larimer  Co.  Reser-  with  special  reference  to  the  rel- 
voir  Co.  V.  People,  8  Colo.  614,  s.  ative  rights  of  ditch-owners,  and 
C.  9  Pac.  Rep.  794.]  the  purchasers  of  water  from  them. 
1  Gen.  St.  Colo.  1883,  p.  571.  And  it  was  held  (1)  that  the  phrase 
2Id.  pp.  198-201,  §§305-315.  "regulate  the  use,"  found  in  the 
5  [In  the  case  of  Golden  Canal  title  of  the  statute,  is  not  confined 
Co.  V.  Bright,  8  Colo.  144,  8.  C.  6  to  the  forbidding  of  injustice  in 

POM.RIP. — 11  (161) 


§    100  RIGHTS   ON   PRIVATE   STREAMS.  [Ch.  6. 

§  100.     Idaho. 

The  General  Laws  of  tliis  territory  contain  "An  act  to  regulate 
the  right  to  the  use  of  water  for  mining,  agricultural,  and  man- 
ufacturing and  other  purposes."'  A  portion  of  this  statute  is 
the  same  in  substance,  with  some  variations  in  the  detail,  as 
the  provisions  hereinbefore  quoted  from  the  Civil  Code  of  Cal- 
ifornia, while  the  remainder  follows  the  system  prevailing  in 
Colorado  and  Montana. 

Section  1.  The  right  of  the  use  of  the  water  flowing  in  any 
river,  creek,  canyon,  ravine,  or  other  stream,  may  be  acquired 
by  appropriation,  and,  as  between  appropriators,  priority  in 
time  shall,  subject  to  the  provisions  of  this  act,  secure  a  pri- 
ority of  right. 

Sec.  2.  The  appropriation  must  be  for  some  beneficial  pur- 
pose, etc. 

Sec.  3.  Appropriator  may  change  the  place  of  diversion,  etc., 
if  no  injury  is  done  to  others. 

Sec.  4.  Notice  to  be  given  substantially  as  in  California. 


the  distribution,  the  prevention  of  The  right  of  an  applicant  for  water 
waste,  or  the  apportionment  in  to  the  writ  of  mandamus,  to  com- 
times  of  scarcity.  It  is  broad  pel  the  defendant  to  supply  it  un- 
enough  to  include  the  frustration  der  the  regulations  provided  by 
of  unfair  exactions,  and  the  fixing  statute,  is  not  prejudiced  by  the 
of  reasonable  rates.  (2)  Under  the  fact  that  he  has  prospectively  a 
law,  though  the  prior  purchaser  remedy  by  an  action  for  damages 
has  not  made  his  application  with-  in  case  his  crops  fail  as  the  re- 
in the  time  prescribed  by  rule,  yet  suit  of  lack  of  irrigation.  (5)  The 
if  he  do  so  afterwards,  and  while  owner  of  an  irrigation  ditch,  under 
the  ditch-owner  is  free  from  con-  the  statute,  is  bound,  provided  he 
flicting  obligations,  and  is  able  to  has  water  sufficient  for  the  pur- 
grant  his  refiuest,  the  statutory  pose,  to  admit  a  prior  purchaser  to 
right  is  not  forfeited.  (3)  The  pre-  its  use  and  enjoyment,  upon  his 
sumption  is  that  the  legislature  in-  payment  or  tender  of  the  proper 
tended  to  confer  the  privilege  spec-  price  therefor,  provided  the  right 
ified  in  the  act,  (section  1740,)  un-  thereto  has  not  been  forfeited.] 
limited  by  any  qualification  as  to  ^Gen.  Laws  Idaho  1881,  pp.  267- 
the  applicant's  ability  to  procure  273,  §§  1-19. 
water  from  any  other  source.     (4) 

(162) 


Ch.  6.]  RIGHTS   ON    PRIVATE   STREAMS.  §    100 

Sec.  5.  Work  must  be  commenced  within  sixty  days,  etc., 
and  prosecuted  to  "complete  diversion,"  etc. 

Sec.  6.  "Complete  diversion"  defined  same  as  "completion" 
in  the  California  Code. 

Sec.  7.  When  work  is  completed,  the  right  relates  back  to 
the  time  of  giving  notice. 

Sees.  8,  9.  Ditches,  appropriations,  and  claims  heretofore 
made  are  protected. 

These  provisions  plainly  do  not  differ  in  any  material  manner 
from  those  of  the  California  Civil  Code.  The  following  sections 
contain  the  essential  elements  of  the  Colorado  and  Montana  leg- 
islation : 

Sec.  10.  "All  persons,  companies,  and  corporations,  owning 
or  claiming  any  lands  situated  on  the  banks  or  in  the  vicinity 
of  any  stream ,  shall  be  entitled  to  the  use  of  the  waters  of  such 
stream  for  the  purpose  of  irrigating  the  land  so  held  or  claimed." 

Sec.  11.  When  any  such  person,  etc.,  has  not  sufficient  front- 
age on  a  stream  to  afford  a  sufficient  fall  for  such  a  ditch,  or 
when  his  land  is  back  from  a  stream  and  convenient  facilities 
for  irrigation  cannot  otherwise  be  had,  he  "shall  be  entitled  to 
a  right  of  way  through  lands  of  others  for  the  purposes  of  irriga- 
tion." Proviso,  that  he  shall  keep  his  ditch  in  good  repair,  and 
shall  be  liable  to  the  owner  of  the  land  which  it  crosses  for  inju- 
ries caused  by  overflow  or  neglect  or  accident. 

Sec.  12.  If  the  owner  of  the  land  refuses  a  right  of  way,  the 
same  may  be  obtained  by  condemnation,  upon  payment  of  the 
compensation  as  fixed. 

Sec.  13.  Provisions  for  ascertaining  and  fixing  such  compen- 
sation by  appraisers. 

Sec.  14.  Persons,  etc.,  having  land  adjacent  to  any  stream 
may  place  in  its  channel  or  on  its  banks  rams,  etc.,  to  raise  the 
water  above  the  level  of  the  banksj  and  a  right  of  way  for  con- 

(163) 


§    101  RIGHTS    ON    PRIVATE  STREAMS.  [Ch.  6. 

ducting  such  waters  across  the  lands  of  others  may  be  acquired 
in  the  manner  prescribed  in  the  last  two  sections. 

Sees.  15,  16.  Provisions  as  to  maintaining  and  keeping  in 
repair  the  ditches;  not  to  do  damage,  etc. 

Sec.  17.  All  rights  acquired  previous  to  this  act  are  not  af- 
fected thereby. 

Sec.  18.  When  the  water  is  not  enough  to  fully  sui)ply  a 
whole  community  or  neighborhood,  it  must  be  distributed  among 
them  according  to  the  local  customs  as  established  and  as  rec- 
ognized by  the  courts. 

Sec.  19.  If  a  ditch  is  constructed  in  order  to  sell  the  water 
for  irrigation,  persons  shall  be  entitled  to  said  water  at  the 
usual  rates,  in  the  following  order,  viz. :  First,  all  persons  through 
whose  land  the  ditch  runs,  in  the  order  of  their  location  along 
the  line  of  the  ditch;  second,  after  the  last  named,  then  those  on 
either  side  of  the  ditch, — those  at  the  same  distance  each  side 
being  equally  entitled,  etc.  Excessive  use  by  any  one  is  pro- 
hibited. 

Another  statute  is  entitled  "An  act  for  the  regulation  of  irriga- 
tion."^ This  statute  provides  for  the  creation  of  water  or  irriga- 
tion districts,  and  for  the  election  of  a  "water-master"  in  each; 
and  minutely  prescribes  his  duties  of  superintending  the  ditches^ 
their  repair,  the  distribution  of  water  among  consumers,  etc. 

§  101.    Dakota. 

A  recent  statute  of  this  territory  adopts  the  fundamental  no- 
tion of  the  Colorado,  Montana,  and  Idaho  legislation;  but  ex- 
tends the  right  of  appropriation  equally  to  all  beneficial  pur- 
poses, as  well  as  that  of  irrigation.^ 

Section  1.  Any  person  or  corporation,  having  title  or  possess- 
ory right  to  any  mineral  or  agricultural  land,  shall  be  entitled 

»Gen.  Laws  Idaho,  pp.  273-275,         2Se88.  Laws  Dak.  1881,  pp.  266- 
§§  1-6.  274. 

(164) 


€h.  6.]  RIGHTS   ON    PRIVATE   STREAMS,  §   101 

to  the  use  and  enjo3aiient  of  the  water  of  any  stream,  creek,  or 
river  within  the  territory,  for  mining,  milling,  agricultural,  or 
domestic  purposes;  but  this  shall  not  interfere  with  rights  pre- 
viously acquired. 

Sec.  2.  Such  persons  may  have  a  right  of  way  across  the 
lands  of  others  under  the  same  circumstances  as  prescribed  in 
the  Colorado,  Montana,  and  Idaho  statutes. 

Sec.  3.  This  right  of  way  shall  only  extend  to  the  construc- 
tion of  a  suitable  ditch,  or  canal,  etc. 

Sec.  4.  All  controversies  between  different  claimants  of  water 
shall  be  determined  by  the  dates  of  their  respective  appropria- 
tions. 

Sec.  5.  "The  water  of  the  streams,  rivers,  and  creeks  of  this 
territory  may  be  made  available  to  the  full  extent  of  the  capac- 
ity thereof,  for  mining,  milling,  agricultural,  or  domestic  pur- 
poses, without  regard  to  deterioration  in  quality  or  diminution 
in  quantity,  so  that  the  same  do  not  materially  affect  or  impair 
the  rights  of  prior  appropriate rs." 

Sec.  6.  If  the  owner  of  lands  sustains  injury  by  a  ditch  con- 
structed across  it,  under  section  2,  the  ditch-owner  shall  be  lia- 
ble to  him  in  damages  therefor. 

Sec.  7.  Relates  to  the  abandonment  of  ditches  or  ap2)ropria- 
tions. 

Sec.  8.  Prescribes  penalties  for  violation  of  foregoing  provis- 
ions. 

One  remarkable  feature  of  this  statute  is  that,  unlike  those 
of  Colorado  and  Idaho,  it  makes  no  provision  whatever  for  ob- 
taining a  right  of  way  for  a  ditch  across  the  lands  of  another 
owner,  by  condemnation.  It  seems  to  permit  an  appropriator 
to  construct  his  ditch  across  the  lands  of  another,  without  the 
latter's  consent,  without  any  compensation  ascertained  and  paid, 
and  without  the  necessity  of  any  proceedings  for  a  condemna- 
tion.    The  only  provision  for  the  benefit  of  such  land-owner 

(-165) 


§    102  RIGHTS    ON    PRIVATE    STREAMS.  [Ch.  6. 

seems  to  be  a  right  to  recover  damages,  if  any  injury  is  caused 
by  the  ditch.  Such  legislation  is,  to  say  the  least,  remarkable. 
It  seems  to  be  a  plain  invasion  of  the  rights  of  private  property, 
an  evident  violation  of  the  constitutional  prohibition  against  de- 
priving a  person  of  his  property  without  due  process  of  law, 
and  taking  private  property  for  public  use  without  just  compen- 
sation. That  such  a  provision  is  invalid  seems  hardly  to  ad- 
mit of  a  doubt. 

§  102.     New  Mexico. 

In  this  territory  the  use  of  water  for  the  purposes  of  irriga- 
tion is  made  paramount  to  all  other  uses,  for  milling,  manu- 
facturing, and  the  like.  The  general  laws  contain  an  elaborate 
system  of  legislation  for  the  construction  and  maintenance  of 
public  and  private  ^' acequias^^  or  irrigating  canals.  This  sys- 
tem is  embodied  in  the  statutes  of  several  successive  legislatures, 
and  is  evidently  borrowed  from  the  Mexican  law.^ 

Section  1 .  "All  inhabitants  of  the  territory  of  New  Mexico  shall 
have  the  right  to  construct  either  private  or  conunon  [i.  e.,  pub- 
lic] acequias,  and  to  take  the  water  for  said  acequias  from  wher- 
ever they  can,  with  the  distinct  understanding 4o  i)ay  the  owner 
through  whose  land  said  acequias  pass  a  just  compensation  taxed 
for  the  land  used."  Provision  is  made  for  appraising  and  fix- 
ing the  amount  of  such  compensation,  in  cases  of  dispute,  by 
appraisers  to  be  appointed  by  a  probate  judge.  [It  may  be  re- 
marked that  these  early  statutes  were  originally  enacted  and 
published  in  the  Spanish  language.  The  translation  found  in 
the  last  edition  of  the  General  Laws,  from  which  these  sections 
are  quoted,  is  extremely  literal,  and  sometimes  fails  to  adopt 
the  precision  and  certainty  of  expression  usual  in  our  English 
and  American  statutes.] 

iGen.  Laws  N.  M.  1880,  pp.  13-  1863,  1866,  and  1880,  concerning 
23,  embracing  Acts  1851, 1852, 1861,      "acequias, "  or  irrigating  canals. 


Ch.  6.]  RIGHTS    ON    PRIVATE   STREAMS.  §    103 

Sec.  2.  "No  inhabitant  of  said  territory  shall  have  the  right 
to  construct  any  property  to  the  impediment  of  the  irrigation 
of  land  or  fields,  such  as  mills  or  other  property  that  may  ob- 
struct the  course  [i.  e.,  flow]  of  the  water;  as  the  irrigation  of 
the  fields  should  be  preferred  to  all  others,  [i.  e.,  to  all  other 
uses.]" 

Sec.  4.  All  owners  of  tillable  lands  shall  labor  on  public  ace- 
quias,  whether  they  cultivate  the  land  or  not. 

Sec.  9.  "All  rivers  and  streams  of  water  in  the  territory  for- 
merly known  as  public  acequias  or  ditches  are  hereby  established 
and  declared  to  be  public  acequias  or  ditches." 

The  foregoing  quotations  suflEiciently  indicate  the  essential  nat- 
ure of  this  system,  without  going  into  any  further  detail.  Sub- 
sequent portions  of  the  statute  make  provision  for  the  election 
of  "overseers"  in  different  precincts,  and  define  their  duties  in 
managing  the  acequias,  and  in  distributing  the  water  supply. 
Ample  provision  is  made  for  maintaining  the  ditches,  and  for 
keeping  them  in  repair  by  public  labor,  etc. 

§  103.     Arizona. 

The  legislation  of  this  territory  somewhat  resembles  that  of 
New  Mexico,  except  that  the  use  of  water  for  mining  purposes 
seems  to  have  a  preference  over  that  for  all  other  purposes,  even 
for  irrigation. 

The  fundamental  principle  that  the  water  of  streams,  etc.,  is 
public,  incapable  of  private  and  exclusive  ownership,  is  declared 
in  the  territorial  bill  of  rights.^ 

"Art.  32.  All  streams,  lakes,  and  ponds  of  water,  capable  of 
being  used  for  purposes  of  navigation  or  irrigation,  are  hereby 
declared  to  be  public  property,  and  no  individual  or  corporation 
shall  have  the  right  to  appropriate  them  exclusively  to  their 

iComp.  Laws  Ariz.  1877,  p.  27,  Bill  of  Rights. 

(167) 


§    104  RIGHTS    ON    PRIVATE    STREAMS.  [Ch.  6. 

own  private  use,  except  under  equitable  regulations  and  restric- 
tions as  the  legislature  shall  provide." 

The  use  of  water  is  regulated  by  the  provisions  of  a  chapter 
concerning  acerjuias  or  irrigating  canals.^ 

Sec.  3240.  All  rivers,  creeks,  and  streams  of  water  are  de- 
clared to  be  public,  and  applicable  for  purposes  of  irrigation  and 
mining. 

Sec.  3241.  All  acequiaa  at  present  established  shall  be  con- 
tinued. 

Sec.  3242.  All  inhabitants  of  this  territory  who  own  or  pos- 
sess arable  or  irrigable  land  shall  have  the  right  to  construct 
public  or  private  acequias,  and  to  obtain  the  necessary  water  for 
the  same  from  any  convenient  river,  creek,  or  stream. 

Sec.  3243.  Such  acequias  may  be  run  through  the  land  of  an- 
other when  necessary,  the  damages  by  way  of  compensation  to 
be  fixed  by  assessors  appointed  by  a  judge,  etc. 

Sec.  3244.  No  interference  shall  be  permitted  with  these  ace- 
quias by  <lams  and  other  structures,  except  when  used  for  min- 
ing purposes  as  otherwise  provided. 

The  use  of  water  for  mining  purposes  seems  to  have  prefer- 
ence over  all  other  uses,  even  when  the  latter  have  been  actually 
established;  but  parties  using  water  for  mining  purposes  must 
pay  compensation  in  damages  for  injury  thereby  caused  to  irri- 
gating canals  (acetjuias)  already  existing.  There  is  no  such  de- 
tailed system  of  regulations  for  the  acequiaa  as  exists  in  New 
Mexico. 

§  104.     Wyoming. 

The  legislation  of  this  territory  is  the  same  in  substance,  and 
almost  identical  in  language,  with  that  of  Colorado,  heretofore 
described.' 

*Comp.  Laws  Ariz.  1877,  p.  538. 
2Comp.  Laws  Wyo.  1876,  pp.  377-379.  §§  1-13. 
(168) 


Ch.  6.]  RIGHTS    ON   PRIVATE    STREAMS.  §   105 

Section  1.  Any  person  or  corporation  having  the  title  or  the 
possessory  right  to  any  tract  of  land  within  the  territory  is  en- 
titled to  the  use  of  the  water  of  any  stream,  etc.,  for  purpose  of 
irrigation,  and  of  making  the  land  available  for  agriculture,  etc. 

Sees.  2-9.  To  that  end,  such  person,  etc.,  may  have  right  of 
way  across  the  lands  of  another  for  a  ditch.  Such  right  of  way 
may  be  acquired  by  condemnation,  the  compensation  therefor 
being  fixed  by  ajDpraisers.  When  the  supply  of  water  is  not 
■sufficient  to  furnish  a  full  amount  to  an  entire  community,  it  is 
to  be  apportioned  among  them.  Owners  or  occupants  border- 
ing on  streams  may  place  rams  in  the  channel  or  on  the  banks 
in  order  to  raise  the  water,  and  may  have  a  right  of  way  to  con- 
duct such  water.  Prior  vested  rights  to  the  use  of  water  are  pro- 
tected.    Provision  for  keeping  ditches,  etc.,  in  good  repair,  etc. 

§  105.     Utah. 

The  General  Statutes  and  Session  Laws  of  this  territory  contain 
an  elaborate  and  detailed  system  of  regulations  devoting  the  wa- 
ter of  all  streams  to  the  purpose  of  irrigation.  The  common- 
law  doctrines  concerning  property  in  the  waters  of  streams,  and 
■"riparian  rights,"  are  completely  abrogated.  The  leading  stat- 
ute concerning  irrigation^  provides  for  the  formation  of  irriga- 
tion districts.  The  citizens  of  such  districts  may  be  organized 
into  irrigation  companies,  and  may  elect  trustees  for  the  man- 
agement of  these  companies.  A  tax  may  be  levied  upon  the 
lands  in  each  district  benefited  in  order  to  defray  expenses. 
Land  may  be  condemned  for  ditches,  etc.     All  ditches  and  other 

1  Comp.  Laws  Utah  1876,  pp.  219-  sist  in  widening  and  repairing  the 

225,  "An  act  to  incorporate  irriga-  same,  with  the  tacit  understanding 

tion  companies,"  passed  January  that  they  are  to  be  entitled  to  use 

20,  1865;  amended  in  Sess.  Laws  the    same,  they    thereby  acquire 

1878,  pp.  49-53.     [Where  parties,  right  and  title  to  such  ditch,  and 

with  the  knowledge  and  consent  to  the  water  therefrom.     Lehi  Ir- 

of  the  original  constructors  of  an  rigation    Co.  v.  Moyle,  (Utah,)  9 

irrigation  ditch,  work  upon  and  as-  Pac.  Rep.  867.] 

(169) 


§    105  RIGHTS   ON    PRIVATE   STREAMS.  [Ch.  6. 

works  become  the  proi)crty  of  the  company,  etc.  No  irrigation 
cuin])ftny  shall  be  entitled  to  divert  the  waters  of  any  stream  to 
the  injury  of  any  irrigation  company  or  person  holding  a  prior 
right  to  the  use  of  said  water.' 

A  more  recent  statute  regulates  the  use  of  water  by  private 
j)ersons,  and  protects  their  rights  to  such  use,  supplementary  to 
the  former  system.^  The  selectmen  of  each  county  are  made 
"water  commissioners,"  and  have  general  power  to  manage  irri- 
gation, and  to  regulate  the  use  and  distribution  of  water  among 
the  land-owners  of  their  respective  counties.  This  statute  con- 
tains provisions,  not  found  in  any  other  legislation,  which  di- 
vide the  vested  rights  of  private  persons  to  use  water  for  domes- 
tic, agricultural,  manufacturing,  and  all  other  beneficial  pur- 
poses, into  two  grades,  "primary"  and  "secondary,"  of  which 
the  "secondary"  is  the  subordinate  grade. ^  The  "primary" 
vested  rights  exist  (1)  when  any  person  or  persons  shall  have 
taken,  diverted,  and  used  any  of  the  unappropriated  water  of 
any  natural  stream,  lake,  or  spring,  or  other  natural  source  of 
supply;  (2)  when  any  person  or  persons  shall  have  had  open, 
peaceable,  uninterrupted,  and  continuous  use  of  water  for  a 
period  of  seven  years.  The  "secondary"  rights  exist,  subject 
to  the  "primary,"  (1)  when  the  whole  water  of  any  stream,  lake, 
or  spring,  or  other  natural  source  of  supply,  has  been  taken, 
diverted,  and  used  by  prior  appropriators  for  a  part  or  parts  of 
each  year,  and  other  persons  have  subsequently  appropriated 
said  water  during  other  parts  of  said  year;  and  (2)  when  the 
unusual  increase  of  the  water  of  a  stream,  over  and  above  its 
avernge  amount  for  seven  years,  has  been  ai)propriated  and  used 
by  any  person  or  persons,  and  the  ordinary  or  average  flow  of 
the  same  stream  has  been  appropriated  and  used  by  other  persons. 

*  Seas.  Laws  1878.  p.  53,  §  7.  to  the  use  of  water,  and  regulating 

2  Sess.  Laws  1880,  pp.  36-41,  "  An  their  exercise.  " 

act  for  the  recording  vested  rights  'Id.  g§  6,  7. 
(170) 


Ch.  6.]  RIGHTS    ON    PRIVATE   STREAMS.  §    106 

In  Oregon  and  Washington. territoiy  there  is  not,  so  far  as  I 
have  been  able  to  discover,  any  legislation  whatever  concerning 
the  use  of  water,  or  property  in  natural  streams  and  lakes,  or 
the  rights  of  rii:)arian  proprietors.  The  necessity  for  any  such 
special  legislation,  it  may  be  assumed,  does  not  exist  in  these 
commonwealths. 

II.     The  Effect  of  This  Legislation. 

§  106.     Riparian  rights  abolished. 

It  is  plain  from  the  foregoing  summary  that  in  the  state  of 
Colorado,  and  in  the  territories  of  Montana,  Idaho,  Dakota,  Wy- 
oming, New  Mexico,  Arizona,  and  Utah ,  the  legislation  has  wholly 
abandoned  and  abrogated  all  the  common-law  doctrines  concern- 
ing private  property  in  streams  and  lakes,  and  concerning  the 
"riparian  rights"  of'rijDarian  proprietors."  The  statutes  in  ex- 
press terms  aj^ply  to  all  streams,  as  well  those  running  through 
public  lands  as  those  bordered  by  the  lands  of  private  owners. 
No  exception  from  their  operation  is  made  in  favor  of  persons 
owning  land  on  the  banks  of  a  stream.  Under  these  statutes  no 
pro^jrietor  derives  any  legal  benefit  or  advantage  from  the  fact 
that  his  land  is  immediately  adjacent  to  a  stream.  Unless  he 
has  made  an  actual  appropriation  and  diversion  of  its  water  for 
the  use  of  his  own  land,  he  is  liable  to  have  perhaps  the  entire 
stream  appropriated  and  diverted  away  for  the  benefit  of  a  pro- 
prietor whose  land  is  situated  at  any  distance  from  the  stream. 
In  fact,  a  proprietor  immediately  adjoining  a  stream  is,  by  rea- 
son of  his  position,  subject  to  a  liability  which  must  often  be  a 
grievous  burden  upon  the  land,  and  a  serious  interference  with 
his  rights  of  private  j^roperty ;  namely,  the  liability  to  which  his 
land  is  exposed  of  having  ditches  or  canals  constructed  across  it 
without  his  consent,  for  the  purpose  of  conducting  water  from 
the  stream  to  more  distant  lands.     Even  though  this  right  of 

(171) 


§   107  RIGHTS    OX    PRIVATE   STREAMS.  [Ch.  6. 

aqueduct  across  the  land  of  a  private  owner  must  be  acquired  by 
condemnation,  under  the  exercise  of  the  power  of  eminent  do- 
main, and  upon  payment  of  compensation,  still  it  must  be  a 
most  material  incumbrance  upon  all  riparian  owners,  and  hin- 
deranoe  to  their  enjoyment  and  free  use  of  their  own  property. 
The  statutes  of  one  territory  seem  to  go  to  the  extreme  of  per- 
mitting canals  and  ditches  to  be  constructed  across  the  lands  of 
private  owners,  againi^t  their  consent,  without  any  condemna- 
tion or  any  comi)cnsation.  Such  a  statutory  provision  seems  to 
be  a  most  palpable  and  express  invasion  of  private  property 
rights,  and  it  is  difficult  to  understand  upon  what  principle  its 
validity  can  be  upheld.  And  yet  the  early  decisions  in  Colo- 
rado seem  to  hold  that  all  lands  of  private  OM-ners  are  subject  to 
the  rights  of  others  to  locate  and  construct  irrigating  canals  and 
ditches  over  them,  and  that  the  statute  on  this  subject  is  simply 
declaratory  of  the  common  law  in  that  commonwealth.' 

§  107.     Two  distinct  systems. 

It  will  be  seen  that  the  legislation,  as  a  whole,  in  these  last- 
mentioned  commonwealths,  provides  in  fact  for  two  distinct 
systems.  One  of  these  is  wholly  private;  permits  private  own- 
ers to  appropriate  the  water  of  any  stream,  and  to  conduct  it  by 
a  ditch  or  canal  to  his  own  lands.  All  disputes  between  two 
or  more  appropriators  or  claimants,  under  this  system,  must 
generally  be  settled  by  judicial  proceedings,  or  appropriate  ac- 
tions, in  which  the  priority  of  the  appropriation  must  determine 
all  questions  of  priority  in  right.  The  other  system  is  public,  or 
at  least  (puisi  public.  It  provides  for  territorial  water  or  irriga- 
tion districts,  including  a  community,  or  space  of  territory  which 
can  be  conveniently  irrigated  by  the  same  supply,  drawn  from 
the  same  source.     These  districts  are  under  the  general  control 

iSee  Yunker  v,  Nichols,  1  Colo.     100;  Crismau  v.  Heiderer,  5  Colo. 
551;  Schilling  V.  Rominger,  4  Colo.      589. 
(172) 


Ch.  6.]  RIGHTS    ON    PRIVATE   STREAMS.  §    107 

of  county  governments;  have  local  or  district  oflficials,  whose 
powers  relate  to  the  location,  construction,  and  maintenance  of 
a  system  of  canals  for  each  district,  to  the  raising  of  money  to 
defray  the  expense  of  their  construction  and  maintenance,  to 
the  distribution  of  .water  among  the  landed  proprietors  in  the 
districts,  and  other  like  matters.  I  shall  not,  at  present,  discuss 
the  policy  of  this  legislation.  Nor  shall  I  make  any  attempt 
to  suggest  and  examine  the  questions  which  must  arise  from  the 
particular  provisions  of  these  statutes.  Hitherto  very  few  cases 
have  come  before  the  courts  involving  a  judicial  interpretation 
of  these  legislative  systems,  and  it  would  be  useless  to  speculate 
concerning  any  possible  interpretation  in  the  future.  It  is 
enough  to  say  that  in  each  of  these  commonwealths  the  statutes 
have  covered  the  whole  ground,  entirely  displacing  the  connnon- 
law  doctrines;  and  the  labors  of  their  courts  will  be  confined  to 
the  proper  construction  and  application  of  the  statutory  rules. 
Without  attempting  any  further  examination  of  these  statutes^ 
which  so  completely  displace  the  common-law  doctrine,  I  shall 
confine  myself  to  the  law  concerning  riparian  rights,  riparian 
proprietors,  and  the  use  of  streams  flowing  through  private  lands, 
in  the  commonwealths  which  have  not  adopted  these  complete 
statutory  systems,  and  settled  all  questions  of  right  by  legisla- 
tion. These  commonwealths  are  the  states  of  California  and 
Nevada. 

(173) 


§    108  RULE     LN    CALIFORNIA   AKD    NEVADA.  [Ch.  7. 


CHAPTER  VII. 

RIPARIAN  RIGHTS  IN  THE  PRIVATE  STREAMS  OF  CAL- 
IFORNIA AND  NEVADA. 

L    Nature  and  Extent  of  These  Rights. 

§  108.    Ambiguity  of  California  statutes  on  water-rights. 

109.  Review  of  the  authorities. 

110.  Common-law  doctrine  of  riparian  rights  obtains  in  Cali- 

fornia. 

111.  Construction  of  section  1423. 

112.  Riparian  rights  excepted. 

113.  Interpretation  of  section  1422 — Lux  v.  Haggin. 

114.  Mexican  law — Effect  on  riparian  rights, 
llo.     Riparian  rights  in  Kern  district. 

116.  Common  law  of  England. 

117.  Who  are  riparian  owners. 

118.  Prescriptive  water-rights. 

n.    Uses  to  Wnicn  the  Water  may  be  Put. 

§  119.     General  statement  of   riparian  rights— Van  Sickle  v. 
Haines. 

120.  Modifications  on  doctrine  of  Van  Sickle  v.  Haines. 

121.  Legitimate  riparian  uses. 

122.  California  decisions.  ^ 

123.  Natural  uses. 

124.  Secondarj'  uses. 

125.  Reasonable  riparian  use. 

126.  Reasonable  use  for  manyfactures. 

127.  Manner  of  use  must  be  reasonable. 

I.     Nature  and  Extent  of  These  Rights. 

§  108.     Ambiguity  of  California  statutes  on  water- 
rights. 

What  is  the  present  condition  of  the  law  of  California  con- 
cerning the  rights  of  private  owners  on  the  banks  of  natural 
streams  to  use  the  water  of  such  streams?     We  have  already- 
seen  that  the  Civil  Code  furnishes  what  purports  to  be  a  system 
(174; 


Ch.   7.]  RULE   IN   CALIFORNIA   AND    NEVADA.  §    108 

of  rules  determining  and  regulating  the  rights  of  water  in  all 
streams,  public  an<l  private;  but  that  the  effect  and  operation 
of  these  rules  are  rendered  at  least  doubtful,  and  perhaps  nuga- 
tory, in  their  application  to  streams  running  through  or  by  pri- 
vate landS;  by  the  final  provision,  section  1422:  "The  rights 
of  riparian  proprietors  are  not  affected  by  the  provisions  of  this 
title."  What  are  the  practical  consequences,  with  respect  to  the 
whole  legislation  of  the  Code,  of  this  restrictive  clause?  It  has 
been  said,  by  way  of  answer,  that  this  clause  is  not  restrictive, 
and  that  it  can  produce  no  x^f'^ctical  consequence  upon  the  leg- 
islation as  a  whole,  because  (1)  under  the  law  of  California,  in- 
dependently of  the  Code,  private  "riparian  proprietors"  have  no 
rights  as  such  to  the  waters  of  the  adjoining  streams;  or  (2)  the 
"rights  of  riparian  proprietors"  intended  to  be  saved  and  pro- 
tected are  simply  those  which  are  not  inconsistent  with  the  pre- 
ceding provisions  of  the  title,  and  which  are  not,  therefore,  taken 
away  by  it;  those  rights,  in  short,  which  still  remain  after  and 
notwithstanding  the  previous  and  operative  sections  of  the  stat- 
utes. Before  entering  upon  any  discussion  of  this  most  impor- 
tant question,  it  will  be  expedient  to  collect  the  various  judicial 
authorities  bearing  upon  it.  which  will  aid  in  its  examination. 
There  seems  to  be  a  prevalent  opinion  that  the  common-law 
doctrines  concerning  "riparian  rights"  of  "riparian  proprietors" 
upon  natural  streams  have  no  existence  whatever  in  the  law  of 
California;  that  the  rights  of  all  private  owners  of  lands  border- 
ing upon  any  stream  are  wholly  subordinate  and  subject  to  the 
right  of  one  who  has  made  a  prior  appropriation  and  diversion 
of  its  water  to  any  extent  for  some  beneficial  purpose;  that  pri- 
ority of  appropriation  and  diversion  determines  the  existence, 
nature,  and  extent  of  the  rights  to  the  waters  of  all  natural 
streams  among  all  persons.  This  opinion  is  wholly  unsupported 
by  judicial  authority.  It  is  directly  opposed  to  a  long  line  of 
decisions  and  of  dicta  which  have,  in  the  clearest  manner,  both 

(175) 


§   109  RULE   IN   CALIKOKNIA    AND   NEVADA.  [Ch.  7. 

prior  to  antl  since  tlie  Codes,  recognized  the  common-law  doc- 
trines concerning  "riparian  riglits,"and  protected  "riparian  pro- 
prietors" in  the  enjoyment  of  those  rights,  to  some  extent  at 
least,  altliough  they  have  not  fully  defined  those  rights,  in  all 
tlieir  scope  and  detail.  The  correctness  of  this  statement  will 
clearly  api)ear  from  the  following  citations. 

§  109.     Review  of  the  authorities. 

In  the  very  latest  case,  which  related  wholly  to  the  appropri- 
ation of  the  waters  of  a  public  stream,  the  court  says:  "No 
question  as  to  the  use  of  the  waters  of  a  stream  by  riparian  pro- 
prietors is  presented  by  this  record.  There  is  nothing  in  the 
pleadings  or  findings  to  indicate  that  when  all  the  waters  of 
Lytle  creek  were  appropriated,  any  of  the  lands  by  or  through 
which  the  creek  Hows  had  passed  into  private  ownership."* 
The  court  here  expressly  recognizes  the  distinction  between  the 
right  of  appropriating  a  stream  flowing  through  the  public  lands, 
and  the  right  to  the  use  of  its  waters  after  any  of  the  lands  by 
or  through  which  it  flows  have  been  acquired  by  private  own- 
ers. In  the  recent  case  of  Ellis  v.  Tone^  the  private  proprie- 
tor of  lands  bordering  on  a  stream  maintained  an  action  and  re- 
covered damages  for  a  diversion  of  the  water  from  the  stream, 
made  by  the  defendant  in  1877.  The  decision  recognizes  and 
is  based  upon  the  existence  of  some  riparian  rights  held  by  the 
plaintiff  as  a  rijiarian  proprietor  on  the  stream.  The  opinion,, 
it  is  true,  does  not  discuss  the  general  doctrine,  but  is  confined 
to  an  examination  of  certain  instructions  given  to  the  jury  at 
the  trial,  and  the  entire  charge  of  the  trial  judge  is  not  reported. 
The  case,  however,  is  a  direct  authority  for  the  existence  of 
"riparian  rights"  under  the  common-law  doctrines,  at  least  ta 
some  extent.     The  decision  in  Pope  v.  Kinman^  is  unambigu- 

1  Lytle  Creek  W.  Co.  v.  Perdew,         258  Cal.  289. 
(Cal.)  2  Pac.  Rep.  732.  ^54  Cal.  3. 

(176) 


Ch.  7.]  RULE    IN   CALIFORNIA    AND    NEVADA.  §    109 

ous  and  express.  A  stream  called  "Lytle  Creek"  rises  on  pub- 
lic lands,  and  then  flows  through  private  lands,  including  those 
of  the  plaintiff  and  of  the  defendants.  The  plaintiff  received 
the  patent  to  his  tract  in  1872.  The  title,  or  at  least  the  pos- 
session, of  the  defendants  was  earlier.  The  defendants  had 
diverted  and  used  all  the  water  of  the  creek,  and  claimed  the  ex- 
clusive right  to  do  so.  The  plaintiff  brought  this  action  in 
1877  to  quiet  his  title  to  the  use  of  the  water  as  a  riparian 
owner,  and  to  restrain  the  defendants'  diversion.  The  court, 
after  holding  that  the  plaintiff's  action  was  not  barred  by  the 
statute  of  limitations,  says:  "The  principal  question  is  whether 
it  is  competent  for  the  defendants,  by  the  mere  diversion  of  the 
waters  of  Lytle  creek,  which  is  an  innavigable  stream  flowing 
across  the  lands  of  the  plaintiff",  to  deprive  the  plaintiff  of  all 
interest  or  right  of  any  nature  in  the  waters  of  that  creek.  As 
being  owner  of  the  land,  the  plaintiff  has  an  interest  in  the  living 
stream  of  water  flowing  over  the  land;  his  interest  is  that  called  the 
'  riparian  right.''  It  is  not  necessary  in  this  case  to  define  in  de- 
tail the  precise  extent  of  the  riparian  rights  as  existing  in  this 
country;  it  is  enough  to  say  that  under  settled  principles,  both 
of  the  civil  and  the  common  law,  the  riparian  proprietor  has  a 
usufruct  in  the  stream  as  it  passes  over  his  land.  The  judgment 
of  the  court  below  deprived  the  plaintiff  of  that  usufruct,  and 
declares  in  terms  '  that  plaintiff  has  no  right,  title,  nor  interest 
in  said  waters  or  any  portion  of  them.'  The  judgment  of  the 
court  below  is  therefore  modified  so  as  to  read  as  follows:  (1) 
That  defendants  have  nothing  as  against  the  plaintiff,  except 
only  such  rights  as  any  of  them  may  have  of  like  character  with 
that  of  the  plaintiff,  as  being  riparian  proprietors  of  land  bor- 
dering on  said  stream;  and  (2)  that  none  of  defendants  have  any 
right,  title,  or  interest  in  or  to  the  waters  of  said  creek  except 
as  riparian  proprietors  as  aforesaid." 

The  rights  of  a  "riparian  proprietor"  were  also  admitted  and 
POM.MP.— 12  (177) 


§    109  RULE    IN    CALIFORNIA    AND    NEVADA.  [Ch.  7. 

protected  in  the  case  of  Creighton  v.  Evans. ^  The  court  said: 
"It  is  admitted  that  the  waters  of  Elk  bayou  flowed  in  its  nat- 
ural channel  throuo;h  plaintiff's  land,  and  that  defendant  di- 
verted a  portion  of  the  water  to  his  own  land  for  purpose  of  ir- 
rigation, and  other  purposes.  It  is  not  averred  that  he  is  a 
riparian  owner,  and  as  such  entitled  to  use  an)'  portion  of  said 
n-ater.  The  court  properly  instructed  the  jury  that  plaintiff  was 
entitled  to  recover  at  least  nominal  damages,  even  though  he 
bad  suffered  no  actual  damages.  But  the  court  further  instructed 
the  jury  that  if  defendant  diverted  a  portion  of  the  w^ater  for  a 
useful  purpose,  and  that  enough  water  was  left  in  the  stream 
for  the  use  of  the  plaintiff  for  watering  his  stock  and  for  domes- 
tic purposes,  and  if  the  plaintiff  was  not  damaged  by  the  diver- 
sion, the  verdict  should  be  for  the  defendant.  This  was  not 
only  contradictory  to  the  first  instruction,  but  was  erroneous  as 
matter  of  law.  So  far  as  appears  on  the  record,  defendant  was 
not  entitled  to  divert  the  water  for  any  purpose,  and  plaintiff 
was  entitled  to  at  least  nominal  damages."  This  case  was  de- 
cided in  1878,  but  the  report  does  not  show  when  the  cause  of 
action  arose.  Several  cases  concerning  the  interference  with  or 
use  of  subterranean  water,  whether  percolating  through  the  soil 
or  flowing  in  defined  streams,  also  recognize  and  are  decided  in 
accordance  with  the  settled  common-law  rules  on  that  subject.^ 
In  the  case  of  Ferrea  v.  Knipe^  the  rights  of  riparian  propri- 
etors were  not  only  recognized,  but  their  extent  was  also  par- 
tially defined.  The  controversy  was  between  two  owners  upon 
the  same  stream.  The  defendant,  for  the  alleged  purpose  of  se- 
curing the  water  for  the  use  of  watering  his  stock,  and  for  domestic 
purposes,  had  erected  a  dam,  which  collected  the  whole  water 


>53  Cal.  55.  Caldwell,  7   Nev.   363;    Strait   v. 

2 See  Hale  v.  McLea,  53  Cal.  578;  Brown.  16  Nev.  317. 

Huston  V.  Leach,  Id.  262;  Hanson  328  Cal.  341. 
».  McCue,  42  Cal.  303;  Hosier  v 

(178) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND   NEVADA.  §    109 

of  the  stream  in  a  pond,  and  prevented  any  of  it  from  flowing 
down  to  the  plaintiff's  lands  below.  An  action  for  damages  and 
preventive  relief  was  sustained.  Currey,  J.,  delivering  the 
■opinion  of  the  court,  said,  (page  344:)  "Every  proprietor  of  the 
land  through  or  adjoining  which  a  water-course  passes  has  a 
right  to  a  reasonable  use  of  the  water,  but  he  has  no  right  to 
so  appropriate  it  as  to  unnecessarily  diminish  the  quantity  of 
its  natural  flow.  The  use  of  the  water  of  a  stream  for  domestic 
purposes  and  for  watering  cattle  necessarily  diminishes  the  vol- 
ume of  the  stream.  This  is  unavoidable,  and  though,  by  rea- 
son of  such  diminution,  a  proprietor  on  the  stream  below  fails 
to  receive  a  suj^ply  commensurate  with  his  wants,  he  is  without 
remedy,  because  his  right  subsists  subject  to  the  rightful  use  of 
the  water  by  his  neighbor  on  the  stream  above  him.  But  while 
admitting  that  a  riparian  owner,  to  whom  the  water  first  comes 
in  its  flow  has  the  right  to  use  it  for  domestic  purposes,  and 
for  watering  his  cattle,  it  is  proper  to  observe  that  he  has  not 
the  right  to  so  obstruct  the  stream  as  to  prevent  the  running  of 
water  substantially  as  in  a  state  of  nature  it  was  accustomed  to 
run.  *  *  *"  Page  345:  "Though  the  defendant  had  the 
right  to  use  the  stream  for  watering  his  cattle,  and  for  house- 
hold purposes,  he  had  not  the  right,  under  the  circumstances, 
to  dam  up  the  creek,  and  spread  out  the  water  over  a  large  sur- 
face, by  which  it  would  become  lost  by  absorption  and  evapo- 
ration to  an  extent  to  prevent  the  stream  from  flowing  to  the 
plaintiff's  premises,  as  it  would  have  done  had  it  not  been  for 
the  defendant's  dams.  This  was  not  a  proper  and  beneficial 
use  of  the  stream." 

In  the  case  of  Hill  v.  Smith, ^  Mr.  C.  J.  Sanderson  announced 
the  principle  which  underlies  the  common-law  doctrines  as  still 
forming  a  part  of  the  California  jurisprudence,  (page  482.) 
Speaking  of  certain  erroneous  views,  he  says:   "This  is  due  in 

127  Cal.  475. 

(179) 


§    109  RULE   IN    CALIFORNIA    AND    NEVADA.  [Ch.  7. 

a  great  measure,  doubtless,  to  the  notion,  which  has  become 
quite  prevalent,  that  the  rules  of  the  common  law  touching  wa- 
ter-rights have  been  materially  modified  in  this  state,  upon  the 
theory  that  they  were  inapplicable  to  the  conditions  found  to- 
exist  here,  and  therefore  inadequate  to  a  just  and  fair  determi- 
nation of  controversies  touching  such  rights.  This  notion  is  with- 
out any  substantial  foundation.  The  reasons  which  constitute  the 
ground-work  of  the  common  law  upon  this  subject  remain  un- 
disturbed. The  maxim ,  '  sic  utere  tuo  ut  alienum  non  laedas, '  upon 
which  they  are  grounded,  has  lost  none  of  its  force.  When  the 
law  declares  that  a  riparian  proprietor  is  entitled  to  have  the 
water  of  a  stream  flow  in  its  natural  channel, — uhi  currere  solebat, 
— without  diminution  or  alteration,  it  does  so  because  its  flow 
imparts  fertility  to  his  land,  and  because  the  water  in  its  pure 
state  is  indispensable  for  domestic  uses.  But  this  rule  is  not 
applicable  to  miners  and  ditch-owners,  simply  because  the  con- 
ditions upon  which  it  is  founded  do  not  exist  in  their  case." 
The  court  went  on  further  to  hold  that  the  common-law  doc- 
trines still  regulated  the  right  to  the  use  of  water  in  mining  re- 
gions as  far  as  the  conditions  of  the  situation  and  business  would 
allow. 

.  In  the  early  and  leading  case  of  Crandall  v.  Woods, ^  which 
did  not  relate  to  the  use  of  water  for  mining  or  other  special 
uses,  nor  to  the  prior  appropriation  of  water  flowing  in  a  public 
stream,  discussed  in  the  former  portion  of  this  article,  the  same 
general  common-law  doctrine  was  affirmed.  The  controversy 
arose  between  two  proprietors  who  held  different  tracts  of  the 
public  land  upon  the  same  stream,  by  a  possessory  right  good 
against  all  third  persons,  but  who  had  not  yet  obtained  the  legal 
title  from  the  United  States  by  patent  or  otherwise.  The  ques- 
tion was  whether  one  of  these  parties  could  divert  the  water  of 
the  stream,  and  prevent  it  from  flowing  by  or  through  the  land 

18  Cal.  136. 
(180) 


Ch.  7.]  RULE   IN   CALIFORNIA    AND    NEVADA.  §    109 

of  the  other,  who  had  acquired  his  possessory  right  before  any 
such  diversion  was  made.  This  question  was  answered  in  the 
negative,  although  the  possession  of  the  one  making  the  diver- 
sion was  prior  to  that  of  the  other  party  who  complained  of  the 
diversion.  Holding  that  possession  of  public  land  carries  with 
it  the  privileges  and  incidents  of  ownership  against  every  one 
but  the  government,  the  court  further  held,  as  a  necessary  con- 
sequence, that  such  possession  gives  the  right  to  the  use  of  wa- 
ter flowing  through  the  land  for  its  natural  wants,  but  does  not 
confer  the  right  to  divert  it,  and  to  prevent  its  running  upon  the 
land  of  another  who  has  taken  up  the  same  subsequently,  but 
before  the  attempt  to  change  the  course  of  the  water.  The  opin- 
ion of  the  court,  by  Mr.  C.  J.  Murray,  uses  the  following  lan- 
guage, (page  141 :) 

"The  property  in  the  water,  by  reason  of  riparian  ownership, 
is  in  the  nature  of  a  usufruct,  and  consists,  in  general,  not  so 
much  in  the  fluid  as  in  the  advantage  of  its  impetus.  This, 
however,  must  depend  upon  the  natural  as  well  as  the  artificial 
wants  of  each  particular  country.  The  rule  is  well  settled  that 
water  flows  in  its  natural  channels,  and  should  be  permitted 
thus  to  flow,  so  that  all  through  ivhose  land  it  passes  may  enjoy  the 
privilege  of  using.  A  riparian  proprietor,  while  he  has  the  un- 
doubted right  to  use  the  water  flowing  over  his  land,  must  so 
use  it  as  to  do  the  least  possible  harm  to  other  riparian  propri- 
etors. The  uses  to  which  water  may  be  appropriated  are,  first, 
to  supply  natural  wants,  such  as  to  quench  thirst,  to  water  cat- 
tle, for  household  and  culinary  purposes,  and,  in  some  coun- 
tries, for  the  purpose  of  irrigation,  [In  no  country  where  the 
common-law  doctrines  alone  govern,  is  the  purpose  of  irrigation 
placed  upon  the  same  footing  with  those  other  purposes  and 
uses  mentioned  by  Mr.  Justice  Murray.]  These  must  be  first 
supplied,  before  the  water  can  be  applied  to  the  satisfaction  of 
artificial  wants,  such  as  mills,  manufactories,  and  the  like,  which 

(181) 


§    109  RULE  IN   CALIFORNIA   AND    NEVADA.  [Ch.  7. 

are  not  indispensable  to  man's  existence.  [The  necessary  lim- 
itations to  be  placed  upon  this  dictum  will  be  described  in  the 
sequel.]  Water  is  regarded  as  an  incident  to  the  soil,  the 
use  of  which  passes  with  the  ownership  thereof.  As  a  general 
rule,  a  property  in  water  cannot  be  acquired  by  appropriation,  but 
only  by  grant  or  prescription."  This  decision  and  the  opinion 
quoted  refer  to  a  condition  of  circumstances  completely  analo- 
gous with  private  ownership  of  lands  on  the  banks  of  a  stream. 
The  appropriation  of  water  from  public  streams  for  mining  and 
other  purposes,  in  pursuance  of  local  customs  and  rules  sanc- 
tioned by  the  act  of  congress,  and  the  special  condition  of  the 
mining  regions,  are  not  involved  nor  afifected  by  the  reasoning 
or  the  decision.  The  common-law  doctrine  here  applied  to  pri- 
vate riparian  proprietors  who  have  only  possessory  titles  or  occu- 
pation rights  to  land  bordering  on  streams,  must  a  fortiori  ex- 
tend to  those  riparian  proprietors  who  have  obtained  complete 
legal  titles  and  ownership  over  such  lands.  The  same  doctrine 
was  affirmed  in  Leigh  v.  Independent  Ditch  Co.^  In  an  action 
for  the  diversion  of  water,  the  complaint  alleged  tliat  the  plain- 
tiffs were  owners  and  possessors  of  a  certain  mining  claim  situ- 
ated on  a  certain  stream,  and  were  entitled  to  have  the  waters 
thereof  flow  as  they  naturally  did,  but  defendants  had  di- 
verted them.  The  defendants  demurred  to  this  complaint  on 
the  ground  that  it  stated  no  cause  of  action,  because  it  did 
not  allege  that  plaintiffs  had  appropriated  the  water,  or  were 
owners  of  it,  or  were  in  possession  of  it.  The  demurrer  was 
overruled.  "The  allegation  that  the  plaintiffs  were  owners  and 
in  possession  of  the  mining  claim  was  sufficient.  The  own- 
ership and  possession  of  the  claim  drew  to  them  the  right 
to  the  use  of  the  water  flowing  in  the  natural  channel  of 
the  stream.  The  diversion  of  the  water  was  therefore  an  in- 
jury to  the  plaintiffs  for  which  they  could  sue.     The  princi- 

18  Cal.  323. 
(182) 


Ch.  7.]  RULE    IN   CALIFORNIA    AND   NEVADA.  §    110 

pie  involved  in  this  case  was  expressly  decided  by  this  court 
in  the  case  of  Crandall  v.  Woods."  The  court  here  expressly 
decided  that  a  riparian  proprietor,  merely  by  virtue  of  his 
ownership,  is  entitled  to  the  use  of  the  water  without  mak- 
ing any  actual  appropriation.  The  common-law  doctrine,  that 
the  right  over  the  stream  arises  from  riparian  ownership,  and 
not  from  any  appropriation,  is  again  declared.  It  is  true  the 
land  in  this  case  was  a  mining  claim,  but  the  decision  was  not 
in  the  slightest  based  upon  or  affected  by  that  fact.  In  the 
state  of  Nevada,  the  common-law  doctrines  concerning  the  ri- 
parian rights  of  private  riparian  proprietors  have  been  adopteci 
in  the  most  explicit  manner  by  the  well-considered  decision  of 
the  supreme  court  in  the  case  of  Van  Sickle  v.  Haines.^  The 
court  held  that  a  person  acquiring  the  legal  title  by  patent  from 
the  United  States,  to  a  tract  of  land  bordering  on  a  stream, 
obtained  as  a  necessary  incident  of  his  ownership,  and  before 
making  any  actual  appropriation,  full  right  to  the  water  of  the 
stream  as  a  riparian  proprietor,  superior  and  complete  as  against 
another  party,  not  a  riparian  owner,  who  had  made  a  prior  ap- 
propriation of  the  waters  of  the  stream  while  it  was  entirely 
public.  Extracts  from  the  very  able  and  instructive  opinion  in 
this  case  will  be  given  under  a  subsequent  head. 

§  110.     Common-la'w  doctrine  of  riparian  rights  ob- 
tains in  California. 

The  foregoing  series  of  cases  shows,  beyond  a  possibility  of 
question  or  doubt,  that  prior  to  and  since  the  adoption  of  the 
Civil  Code,  the  laws  of  California  recognized,  protected,  and  en- 
forced the  rights  known  as  the  "riparian  rights"  of  private  "ri- 
parian proprietors"  owning  lands  situated  on  the  banks  of  nat- 
ural streams,  substantially  as  they  exist  at  the  common  law* 

17  Nev.  249. 

(183) 


§110  RULE   IN   CALIFORNIA    AND   NEVADA.  [Ch.  7. 

The  rights  thus  known  as  "riparian  rights"  have  been  defined/ 
they  belong  alike  and  equally  to  all  "riparian  proprietors"  on 
the  same  stream,  subject  solely  to  the  natural  advantage  belong- 
ing to  the  upper  over  the  lower  proprietor;^  they  exist  as  a  nec- 
essary incident  of  ownership,  even  though  the  proprietors  had 
not  as  yet  made  any  actual  appropriation  or  diversion  of  the 
■water;^  they  entitle  each  "riparian  projDrietor"  to  the  usufruct 
of  the  water  as  it  flows  in  the  natural  channel  of  the  stream,  in- 
cluding the  right  to  use  so  much  of  it  as  may  be  reasonably  nec- 
essary for  such  primary  purposes  as  watering  his  cattle,  domestic 
and  household  uses,  without  thereby  unnecessarily  or  unreason- 
ably diminishing  its  natural  flow  down  to  the  proprietors  below 
him  on  the  stream.*  Whether  these  riparian  rights  include  the 
right  to  use  the  water  for  purposes  of  irrigation  is  not  directly 
decided,  nor  even  considered,  by  these  cases. 

We  are  thus  furnished  with  a  conclusive  answer  to  a  question 
suggested  on  a  preceding  page.  I  had  stated  the  position  main- 
tained by  some,  that  the  section  1422  of  the  Civil  Code  is  not  in 
reality  restrictive,  and  can  produce  no  practical  effect  upon  the 
whole  legislation  of  the  Code  concerning  water-rights  for  two  rea- 
sons; the  first  of  these  being  that,  under  the  law  of  California, 
independently  of  the  Code,  private  "riparian  proprietors"  have 
no  rights  as  such  to  the  waters  of  the  adjoining  stream.  The 
series  of  decisions  above  quoted  demonstrates  the  incorrectness 
of  this  opinion.  These  authorities  show  most  clearly  that  the 
law  of  California,  independently  of  the  Code,  did  and  does  rec- 
ognize the  "riparian  rights"  of  "riparian  proprietors"  substan- 
tially as  they  exist  at  the  common-law.  This  conclusion  is  so 
certain  that  no  further  discussion  can  render  it  any  more  plain. 

*Pope  V.  Kinman,  54  Cal.  3.  ^pope  v.  Kinman.  Creighton  v. 

2Id.;    Ferrea  v.  Knipe,  28  Cal.  Evans,  Ferrea  v.  Knipe,  Crandall 

841;  Crandall  v.  Woods,  8  Cal.  136.  v.  Woods,  supra. 
8  Creighton  v.  Evans,  53  Cal.  55. 

(184) 


€h,  7.]  RULE    IN    CALIFORNIA    AND   NEVADA.  §    111 

The  legislature,  in  enacting  section  1422,  clearly  assumed  that 
the  then  existing  law  of  the  state  recognized  and  protected  these 
^'riparian  rights"  of  "riparian  proprietors." 

§  111.     Construction  of  section  1422. 

We  are  then  brought  back  to  a  consideration  of  the  question: 
What  are  the  practical  effects,  upon  the  entire  legislation  of  the 
<^ode,  of  the  restrictive  provision  contained  in  section  1422?  In 
support  of  the  position  maintained  by  some,  that  this  clause  is 
not  restrictive,  and  can  produce  no  practical  effects  upon  the 
legislation  as  a  whole,  a  second  ground  has  been  advanced, 
namely,  that  the  "rights  of  riparian  proprietors"  intended  to  be 
saved  and  protected  by  the  section  are  simply  those  which  are 
not  inconsistent  with  the  previous  sections  of  the  title,  and  which 
are  not,  therefore,  taken  away  and  abrogated  by  these  provis- 
ions; those  rights,  in  short,  which  still  remain  in  force  after 
and  notwithstanding  the  preceding  and  operative  sections  of  the 
statute.  Is  this  the  interpretation  which  should  properly  be 
given  to  the  language  of  section  1422?  In  my  opinion  it  is  not. 
Such  an  interpretation  would,  in  my  opinion,  be  unreasonably 
forced,  and  in  plain  violation  of  the  settled  rules  governing  the 
construction  and  interpretation  of  statutes.  In  the  first  place, 
it  is  a  fundamental  doctrine  of  statutory  interpretation  that  in 
every  distinct,  clear,  additional  provision  the  legislature  must 
be  assumed  to  have  meant  something;  to  have  intended  the  provis- 
ion to  have  some  meaning,  operation,  and  effect,  so  that  it  is 
not  wholly  superfluous,  useless,  and  nugatory.  Nothing  but  ab- 
solute necessity,  therefore,  should  ever  admit  such  an  interpre- 
tation of  a  clear,  distinct,  and  positive  provision  as  would  ren- 
der it  unnecessary,  useless,  superfluous,  and  nugatory. 

The  suggested  construction  of  section  1422  would  render  the 
whole  clause  utterly  useless,  superfluous,  and  nugatory.  If  it 
were  adopted,  the  section  would  in  effect  read:   "The  rights  of 

(185) 


§    111  RULE    IX   CALIFORNIA   AXD   NEVADA.  [Ch.  7, 

riparian  proprietors,  so  far  as  tliey  are  not  taken  away  or  abro- 
gated by  the  provisions  of  this  title,  are  not  affected  by  the  pro- 
visions of  this  title."  It  cannot  be  supposed  that  the  legislature 
would  deliberately,  and  by  a  formal  and  final  section  placed  at 
the  end  of  a  statute,  enact  a  provision  so  unnecessary  and  mean- 
ingless. Whatever  may  have  been  the  riparian  rights  existing 
previous  to  the  statute,  then,  as  a  matter  of  course,  so  far  as 
they  were  not  opposed  to  the  provisions  of  the  statute,  so  far  as 
they  were  not  taken  away,  abrogated,  lessened,  or  altered  by 
the  statute,  they  would  necessarily  remain  unaffected  by  its  pro- 
visions. It  needs  no  express  clause  to  produce  this  result,  which 
would  be  inevitable  in  the  absence  of  such  a  clause;  no  clause 
could  make  the  consequence  any  more  certain  or  operative. 
We  find  the  title  of  the  Code  concluded  by  a  formal,  peremp- 
tory, and  sweeping  final  section  in  the  nature  of  a  proviso  or 
limitation  upon  the  operation  of  the  statute  as  a  whole,  and  it 
is  simply  absurd  to  suppose  that  the  legislature  intended  by 
this  section  nothing  but  what  would  have  been  equally  true  if 
the  section  had  been  omitted .  The  correctness  of  this  conclu- 
sion will  appear  even  still  more  clear  from  a  further  considera- 
tion. The  interpretation  which  I  am  examining  would  render 
section  1422  wholly  without  meaning,  effect,  and  operation.  If 
the  "rights  of  riparian  proprietors"  intended  to  be  protected  are 
simply  those  which  are  not  inconsistent  with  the  previous  sec- 
tions of  the  title,  which  are  not  abrogated,  but  which  still  re- 
main notwithstanding  the  preceding  provisions  of  the  statute, 
then,  I  say,  this  section  1422  is  utterly  useless,  and  without 
any  force  and  effect,  because  there  are  no  such  "rights  of  riparian 
proprietors"  remaining  unaffected  by  the  title.  If  the  previous 
provisions  of  this  title  are  operative  to  their  full  extent,  unlim- 
ited and  unrestricted  by  the  final  section,  then  they  must  inev- 
itably abolish  and  abrogate  all  the  "riparian  rights,"  and  "rights 
of  riparian  proprietors,"  existing  at  the  common  law.  The 
086; 


Ch.  7.]  RULE    IN    CALIFORNIA    AND    NEVADA.  §    112 

fundamental  conception  upon  which  all  of  the  common-law  rules 
are  based,  and  all  and  singular  of  the  special  "riparian  rights," 
and  rights  of  "riparian  proprietors"  created  and  regulated  by 
these  common-law  rules,  are  alike  inconsistent  with  and  opposed 
to  the  provisions  of  this  title  of  the  Code,  if  these  are  to  have 
their  full  and  natural  meaning  and  operation,  unrestricted  by 
the  proviso  contained  in  the  final  section  1422.  And,  further- 
more, the  interpretation  in  question  seems  to  have  been,  im- 
pliedl}'  at  least,  condemned  by  recent  decisions  of  the  supreme 
court.  In  several  of  the  cases  above  quoted,  the  causes  of  ac- 
tion arose  since  the  title  of  the  Civil  Code  concerning  water- 
rights  went  into  effect.  Under  the  construction  which  it  i& 
claimed  should  be  given  to  section  1422,  the  provisions  of  this 
title  would  have  been  a  complete  answer  to  the  plaintiffs  con- 
tention in  all  of  these  cases,  and  would  have  absolutely  con- 
trolled their  decision.  And  yet  in  none  of  these  cases  is  the 
title  of  the  Code  even  suggested  or  referred  to  by  the  court.  It 
is  not  too  much  to  say  that  these  cases  are  wholly  inconsistent 
with  any  interpretation  of  section  1422,  which  leaves  the  pre- 
ceding provisions  of  this  title  fully  operative,  according  to  their 
natural  and  literal  import,  upon  the  rights  of  private  riparian 
proprietors.^ 

§  112.     Riparian  rights  excepted. 

The  conclusion,  then,  seems  to  be  irresistible  that  the  legis- 
lature intended  section  1422  to  have  some  meaning  and  effect; 
that  they  designed  it  to  be  a  material  and  substantial  limitation 
upon  the  otherwise  general  operation  of  the  preceding  clauses  of 

^See  Ellis  v.  Tone,  58  Cal.  289;  would  certainly  have  been  made. 

Pope  V.  Kinman,  54  Cal.  3;  and  if  it  had  the  effect  to  abrogate  all 

in  other  reported  cases    decided  riparian  rights.     See  Creighton  v. 

since  the   Code    took  effect,   but  Evans,  53  Cal.  55;  Lytle  Creek  Wa- 

which    do    not    show    when    the  ter  Co.  v.  Perdew,(Cal.)2  Pac.  Rep. 

causes  of  action  arose,  some  ref-  733. 
erence  to  this  title  of  the  Code 

(187) 


§    112  RULE    IN    CALIFORNIA    AND    NEVADA.  [Ch.  7. 

the  title.  What  are  its  moaning  and  its  effect?  A  fair  and  rea- 
sonable construction  seems  to  leave  no  other  alternative  but 
that  the  section  must  have  all  the  meaning,  force,  and  effect 
which  can  result  from  the  full,  settled,  and  legal  import  of  all 
its  terms,  considered  as  referring  to  and  acting  ujjon  the  then 
€xisting  doctrines  of  the  law  established  by  judicial  decisions. 
In  other  words,  the  common-law  "riparian  rights"  of  private 
"riparian  proprietors"  owning  tracts  of  land  upon  the  margins 
of  natural  streams  in  this  state,  ^'hich  have  been  recognized, 
declared,  and  maintained  by  judicial  decisions  both  before  and 
since  the  Code,  are  not  affected  by  the  title  of  the  Code;  do  not, 
in  fact,  come  within  the  purview  of  its  provisions.  In  short, 
the  whole  title  has  no  relation  to,  nor  effect  upon,  the  rights  of 
those  private  owners  who  hold  tracts  of  land  bordering  upon 
natural  streams,  but  is  confined  in  its  operation  to  the  rights  of 
appropriating  and  using  the  waters  of  streams  which  flow  wholly 
through  public  lands  of  the  United  States  or  of  the  state.  There 
seems  to  be  no  escape  from  this  construction  unless  an  entirely 
different  meaning  is  to  be  given  to  the  words  "rights  of  riparian 
proprietors"  when  found  in  a  statute,  from  that  given  by  the 
universal  consent  of  all  judicial  decisions. 

The  supreme  court  has  uniformly  recognized  and  maintained 
the  distinction  between  the  common  right  of  all  persons  to  ap- 
propriate the  water  of  streams  while  running  wholly  through 
public  lands,  and  the  rights  of  private  riparian  owners  who  have 
acquired  private  titles  to  lands  on  the  banks  of  streams.  It  has 
recognized  the  technical  terms  "riparian  rights"  and  "riparian 
proprietors,"  and  has  defined  them  as  they  have  been  defined 
and  are  understood  at  the  common  law.  The  doctrines  decided 
by  the  supreme  court  concerning  these  "riparian  rights"  have 
been  summarized  on  a  previous  page,  and  need  not  be  here 
repeated.^     There  can  be  no  reasonable  doubt  that  these  "ri- 

iSee  o?i;e,  §  109. 
(188) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND    NEVADA.  §    112 

parian  rights"  of  private  owners  on  the  banks  of  streams  are  re- 
ferred to  by  section  1422,  are  excepted  or  removed  by  it  from 
the  meaning  and  operation  of  the  whole  title,  and  are  left  exist- 
ing in  the  law  of  California  as  fully  and  completely  as  they  were 
before  the  Code.  The  title  of  the  Code  thus  finds  its  sole  ap- 
plication to  the  water  of  streams  flowing  entirely  through  pub- 
lic lands,  upon  the  banks  of  which  no  private  owner  has  yet  ac- 
quired title  to  any  tract  or  parcel  of  private  land. 

If  it  be  urged  that  this  construction  virtually  emasculates  the 
entire  title  of  the  Code  concerning  water-rights,  and  renders  it 
rirtually  inoperative  over  a  large  and  most  important  branch  of 
those  rights,  the  answer  is  that  this  is  the  fault  of  the  legisla- 
tion, and  not  of  the  construction.  It  is  the  duty  of  courts  to 
take  statutes  as  they  are,  to  expound  them  according  to  the  plain 
and  natural  import  of  their  terms,  and  not  to  add  to  or  take 
from  them  according  to  any  notions  which  the  judges  may  have 
as  to  what  the  legislature  oic^/i^  to  have  enacted.  In  the  title  of 
the  Code  under  consideration  the  legislature  has  undoubtedly 
shirked  its  responsibility.  Called  upon  to  settle  a  question  of 
the  gravest  importance,  in  which  there  are  directly  opposing 
interests  involved,  any  settlement  of  which  must  necessarily  be 
hostile  to  some  large  pecuniary  interests,  the  legislature,  under 
a  mere  appearance, — a  simulacrura  of  settlement, — has,  in  fact, 
done  nothing,  but  has  left  all  the  important  questions  of  private 
water-rights  of  private  riparian  owners  in  exactly  the  same  posi- 
tion which  they  occupied  prior  to  the  Code.  The  failure  of  the 
legislature  to  do  what  it  was  supposed  and  desired  by  some  it 
should  do,  can  have  no  effect  upon  the  action  of  the  courts  in 
construing  and  interpreting  the  statute  as  a  whole.     The  court 

cannot  enact  a  new  and  different  statute. 

(189) 


§    1  13  RULE    IN    CALIFORNIA    AND    NEVADA.  [Ch.  7. 

§  113.     Interpretation    of    section    1422  —  Lux    v. 
Haggin. 

[The  views  advanced  by  our  author  in  the  preceding  sections 
have  received  the  sanction  of  the  highest  court  of  California,  and 
are  thus  in  harmony  with  the  authoritative  interpretation  of  this 
obscure  and  ambiguous  statute.  In  the  case  of  Lux  v.  Haggin,^ 
decided  in  1884,  it  was  said  by  Sharpstein,  J. :  "After  carefully 
examining  all  the  cases  bearing  on  this  question,  we  are  unable 
to  find  one  in  which  it  is  held,  or  even  suggested,  that  outside 
of  the  mining  districts  the  common-law  doctrine  of  riparian 
rights  does  not  apply  with  the  same  force  and  effect  in  this  state 
as  elsewhere."  And  the  reason  why  it  did  not  apply  to  the  min- 
ing districts  is  "that  the  government,  being  the  owner  of  all  the 
land  through  which  a  stream  of  water  runs,  had  a  right  to  per- 
mit the  diversion  and  use  of  it  by  any  one  who  chose  to  divert 
and  use  it  for  mining,  agricultural,  or  other  purposes.  There 
is  not  only  no  occasion  for  the  application  of  the  doctrine  of  ri- 
parian proprietorship  in  such  a  case,  but  it  is  one  to  which  the 
doctrine  could  not  be  applied."  The  court  continued:  "The 
provisions  of  the  Civil  Code  in  respect  to  the  appropriation  of 
water  must  be  limited  to  that  which  flows  over  lands  owned 
by  this  state  or  by  the  United  States.  It  cannot  affect  the  rights 
of  riparian  proprietors,  (1)  because  it  is  expressly  declared  that 
it  shall  not;  and  (2)  because  an  owner  of  land  cannot  be  di- 
vested of  any  interest  which  he  has  acquired  in  it  except  for  a 
public  use,  and  not  then  until  just  compensation  has  been  made 
forit.»2 

1 4  Pac.  Rep.  919,  923.  deed  could  not,  affect  the  rights  of 
2Inthi3  case  a  dissenting  opin-  those  persons  holding  under  grants 
ion  was  delivered  by  Ross,  J.,  in  from  the  Spanish  or  Mexican  gov- 
whichhesaid:  "Of  course  the  doc-  ernment — First,  because  the  doc- 
trine of  appropriation,  as  contra-  trine  is  expressly  limited  to  the 
distinguished  to  that  of  riparian  waters  upon  what  are  known  as 
rights,  was  not  intended  to.  and  in-  the  public  lands;  and,  secondly,  be- 

(190) 


Ch.  7.]  RULE    IN   CALIFORNIA   AND    NEVADA.  §    113 

This  case  was  reargued  in  1886;  and  the  opinion  then  pre- 
pared is  so  exhaustive  in  its  scope,  and  is  characterized  by  such 
learning  and  judicial  acumen,  that  it  may  almost  be  said  to  con- 
stitute, in  itself,  a  complete  treatise  on  water-rights.  In  regard 
to  the  point  now  under  consideration,  it  was  held  that  the  water- 
rights  of  the  state,  as  riparian  owner,  are  not  reserved  by  section 
1422  of  the  Code,  because  (whenever  the  state  has  not  already 
parted  with  its  right  to  those  who  have  acquired  from  it  a  legal 
or  equitable  title  to  riparian  lands)  the  provisions  of  the  Code 
confer  the  state's  right  to  the  flow  on  those  appropriating  water 
in  the  manner  prescribed  by  the  Code.^  Further,  it  was  sug- 
gested in  argument  that  the  "riparian  rights"  designed  to  be  re- 
served by  section  1422  were  such  only  as  had  become  vested 
before  the  Code  went  into  operation,  and  that,  after  that  date, 
no  genuine  riparian  rights  could  be  acquired  in  California.  But 
the  court  held  that  the  section  in  question  is  protective,  not  only 
of  riparian  rights  existing  when  the  Code  was  adopted,  but  also 
of  the  riparian  rights  of  those  who  had  acquired  a  title  to  land 
from  the  state  after  the  adoption  of  the  Code,  and  before  an  ap- 
propriation of  water  in  accordance  with  the  Code  provisions. 
This  decision  was  made  to  rest  upon  a  point  not  previously  con- 
sidered in  any  of  the  cases,  but  one  of  such  importance  and  so 
clear  that  it  seems  to  terminate  the  whole  controversy.  To  quote 
the  language  of  McKinstry,  J. :  "We  do  not  find  it  necessary  to 
say  that  the  prospective  provisions  of  the  Code  would  violate 
the  obligation  of  a  contract;  but,  when  the  state  is  prohibited 


cause  the  rights  of  such  grantees  from  the  operation  of  the  provis- 

are  protected  by  the  treaty  with  ions  of  the  Civil  Code,  in  relation 

Mexico  and  the  good  faith  of  the  to  water-rights,  by  section  1422  of 

government.     It  is  the  rights  of  that  Code. "  Lux  v.  Haggin,  (Cal.) 

such  riparian  proprietors  as  t/tose  4  Pac.  Rep.  919,  935,     But  this  view 

that  are  unaffected  by  the  doctrine  cannot  be  regarded  as  tenable, 

of  appropriation,  and  those  are  the  ^Lux  v.  Haggin,  (Cal.)  10  Pac. 

riparian  rights  that  are  excepted  Rep.  739. 

(191) 


§113  RULE    IN    CALIFORNIA    AND    NEVADA.  [Cll.  7. 

from  interfering  with  the  primary  disposal  of  the  public  lands 
of  the  United  States,  there  is  included  a  prohibition  of  any  at- 
tempt on  the  part  of  the  state  to  ju'eclude  the  United  States  from 
transferring  to  its  grantees  its  full  and  complete  title  to  the  land 
granted,  with  all  its  incidents.  The  same  rule  must  apply  to- 
homesteaders,  pre-emptioners,  and  other  purchasers  under  the 
laws  of  the  United  States.  To  say  that  hereafter  the  purchaser 
from  the  United  States  shall  not  take  any  interest  in  the  water 
flowing  to,  or  in  the  trees  on,  or  in  the  mines  beneath,  the  sur- 
face, but  others  of  our  citizens  shall  have  the  privilege  of  remov- 
ing all  these  things,  is  to  say  that  hereafter  the  United  Statea 
shall  not  sell  the  water,  wood,  or  ores."  The  learned  judge  con- 
tinued: "The  section  declares,  in  effect,  that  those  appropriat- 
ing water  under  the  previous  sections  shall  not  acquire  the  right 
to  deprive  of  the  flow  of  the  stream  those  who  shall  have  ob- 
tained from  the  state  a  title  to,  or  right  of  possession  in,  ripa- 
rian lands,  before  proceedings  leading  to  appropriation  shall  be 
taken.  Such  is  the  meaning  of  the  words  employed.  Our 
conclusion  on  this  branch  of  the  case  is  that  section  1422  saves 
and  protects  the  riparian  rights  of  all  those  who,  under  the  land 
laws  of  the  state,  shall  have  acquired  from  the  state  the  right  of 
possession  to  a  tract  of  riparian  land  prior  to  the  initiation  of 
proceedings  to  appropriate  water  in  accordance  with  the  pro- 
visions of  the  Code.  If  section  1422  of  the  Civil  Code  were  in- 
terpreted as  saving  all  riparian  rights  actually  vested  before  the 
section  took  effect,  the  mere  appropriator  could  acquire  no  rights 
to  water  by  virtue  of  the  provisions  of  the  Code,  but  would  be 
left  to  the  enjoyment  of  such  as  he  might  secure  by  convention 
with  the  riparian  proprietors.  If  all  riparian  rights  existing 
when  the  section  was  adopted  were  preserved  by  section  1422» 
then,  inasmuch  as  both  the  state  and  the  United  States  were  at 
that  time  riparian  owners,  the  lands  of  neither  government  would 
be  affected  relating  to  water-rights;  nor,  of  course,  would  any 
(192) 


Ch.  7.]  RULE  IN    CALIFORNIA    AND    NEVADA.  §    114 

subsequent  grantee  of  either  government  be  affected  by  those 
provisions."^ 

The  common  law,  therefore,  defines  and  governs  the  water- 
rights  of  all  persons  owning  lands  upon  a  stream  in  California, 
where  the  waters  of  such  stream  had  not  been  already  appro- 
priated when  their  titles  accrued.] 

§  114.     Mexican  law — Effect  on  riparian  rights. 

[The  recognition  and  enforcement  of  the  common  law  doctrine 
of  riparian  rights,  by  the  legislation  and  in  the  courts  of  Cali- 
fornia, is  not  in  anywise  affected  or  invalidated  by  the  fact  that 
the  laws  of  Mexico  obtained  in  that  jurisdiction  before  its  ad- 
mission as  a  state  into  the  Union.  If,  under  the  Mexican 
regime,  vested  rights  of  property  had  grown  up,  of  such  a  nature 
and  to  such  an  extent  that  the  general  enactment  of  the  law  of 
riparian  proprietorship  would  have  been  inconsistent  with  their 
continued  enjoyment,  it  is  obvious  that  California  would  have 
had  no  power  to  destroy  these  rights  by  the  adoption  of  the  com- 
mon law,  or  by  its  legislation  on  the  subject  of  waters.  But,  on 
the  contrary,  the  Mexican  law,  as  it  existed  at  the  time  of  the 
cession  of  California,  did  not  confer  nor  recognize  any  inherent 
vested  right,  enforceable  in  the  courts,  in  others  than  riparian 
proprietors,  to  the  use  of  any  portion  of  the  waters  of  a  stream, 
nor  any  right,  except  as  to  those  who  actually  appropriated 
waters  in  the  manner  and  on  the  conditions  prescribed  by  the 
laws. 

This  subject  was  very  fully  discussed  in  the  recent  important 
case  of  Lux  v.  Haggin,^  where  the  conclusion  above  indicated 
was  reached  and  applied.  It  was  contended  by  counsel  that 
"  the  fundamental  jDrinciple  ujDon  which  all  the  laws  of  the  for- 
mer governments  of  this  territory  upon  this  subject  [waters  and 
their  uses]  were  based  will  be  found  to  be  that  the  flowing  wa- 

iLux  V.  Haggiu,  (CaU  10  Pac.  Rep.  674,  744.  2  id.  674,  705-718. 

poM.Rip.— 13  (193) 


§    111  RULE    IN   CALIFORNIA   AND    NEVADA.  [Ch.  7. 

turs  of  the  streams  and  rivers  of  the  country  were  dedicated  to 
the  connnon  use  of  the  inhaliitants,  subject  to  that  legislative 
control  which  is  the  equivalent  of  the  exercise  of  that  legislative 
power  which  wc  know  as  the  'police  power'  of  the  state."  And 
the  court  understood  this  proposition  to  mean  that  "the  inhab- 
itants" of  the  territory,  or  at  least  the  occupants  of  lands  in  each 
valley  or  water-shed  capable  of  irrigation  from  a  stream  flowing 
in  it.  had,  under  the  Mexican  law,  a  vested  interest  in  the  com- 
mon use,  for  irrigation  and  like  purposes,  to  which  the  waters 
were  "dedicated,"  which  could  not  be  taken  away  by  the  legis- 
lative power;  that  the  dedication  continues  to  the  present  hour; 
that  the  state  of  California  has  no  power  to  restrict  the  use  to 
riparian  proprietors;  that  the  statute  of  1850,  adopting  the  com- 
mon law  as  the  rule  of  decision,  is  not  to  be  construed  as  an  at- 
tempt so  to  restrict  the  use;  and,  if  it  must  be  thus  construed, 
it  is  invalid  to  tliat  extent,  since  the  power  of  the  state  is  lim- 
ited to  the  mere  rcfjidation  of  the  common  use.  But  the  court 
denied  the  view  contended  for,  and  announced  the  principle 
that,  "by  the  law  of  Mexico,  the  running  waters  of  California 
were  not  dedicated  to  the  common  use  of  all  the  inhabitants  in 
such  sense  that  they  could  not  be  deprived  of  the  common  use." 
This  doctrine  was  supported  upon  substantially  the  following 
reasoning:  By  the  Roman  law,  three  things,  viz.,  air,  running 
water,  and  the  sea,  (with  its  shores,)  were  considered  as  com- 
mon to  all.  But  the  Roman  jurists  made  a  distinction  between 
res  communes  and  res  puhlicie,  including  the  sea  among  the  for- 
mer and  rivers  among  the  latter.  The  same  distinction  was 
recognized  by  the  Spanish  writers, — bienes  comunes  being  those 
which,  not  being,  as  to  ownership,  the  property  of  any,  pertain 
to  all  as  to  their  use, — as  the  air,  rain,  water,  the  sea,  and  its 
beaches;  and  bienes  publkos  being  those  which,  as  to  property, 
pertain  to  a  people  or  nation,  and,  as  to  their  use,  to  all  the  in- 
dividuals of  the  territory  or  district, — such  as  rivers,  shores, 
(194; 


Ch.  7.]  RULE   IN   CALIFORNIA  AND   NEVADA.  §    114 

*ports,  and  public  roads.  And  by  the  Mexican  law  the  property 
in  rivers  pertained  to  the  nation;  the  use,  to  the  inhabitants. 
Now,  whatever  the  common  use  to  which  rivers,  harbors,  and 
public  roads  were  subjected,  the  enjo3'^ment  of  such  use  would 
exclude  the  notion  of  an  exclusive  use  or  occupation  which  must 
interfere  with  a  like  use  by  others.  But  the  common  use  of 
rivers  would  seem  to  be  such  as  all  could  enjoy  who  had  access 
to  them  as  rivers.  An  eminent  English  judge  speaks  of  a  dis- 
tinction mentioned  by  the  civilians  between  a  river  and  its  wa- 
ters; the  former  being,  as  it  were,  a  perpetual  body,  and  under 
the  dominion  of  those  in  whose  territory  it  is  contained;  the 
latter  continually  changing,  and  incapable,  while  it  is  there,  of 
becoming  the  subject  of  i3roperty ;  and  he  adds:  "It  seems  that 
the  Roman  law  considered  running  water  not  as  a  bonum  means, 
in  which  any  might  acquire  a  property,  but  as  public  or  com- 
mon, in  this  sense  onl}^  that  all  might  drink  it,  or  apply  it  to 
the  necessar}'  purposes  of  supporting  life;  and  that  no  one  had 
any  property  in  the  water  itself,  except  in  that  particular  por- 
tion which  he  might  have  abstracted  from  the  stream,  and  of 
which  he  had  the  possession,  and  during  the  time  of  such  pos- 
session only."^  The  common  use  of  the  waters,  it  would  seem, 
existed  only  while  they  continued  to  flow  in,  and  constituted  a 
portion  of,  the  river;  but  under  the  Mexican  law  an  exclusive 
use  of  parts  or  the  whole  of  the  waters  of  a  river  might  be  legally 
acquired  by  individuals.  By  the  Mexican  Civil  Code  of  1870 
it  is  provided:  "The  property  in  waters  which  pertains  to  the 
state  does  not  prejudice  the  rights  which  corporations  or  private 
individuals  may  have  acquired  over  them  by  legitimate  title, 
according  to  what  is  established  in  the  special  laws  respecting 
public  property.  The  exercise  of  property  in  waters  is  subject 
to  what  is  provided  in  the  following  acts."  Article  1066.  If, 
as  is  probable,  the  presumption  is  that  the  provisions  of  the 

iDenman,  J.,  in  Mason  v.  Hill,  5  Barn.  «&  Adol.  1. 

(195) 


§   Hi  RULE   IN   CALIFORNIA    AND    NEVADA.  [Ch.  7. 

Code  are  declaratory  of  the  pre-existing  law,  the  right  ^Yhich 
could  be  acquired  under  the  laws  to  the  separate  use  of  the  por- 
tions of  a  stream  constituted  an  exclusive  usufruct,  of  the  nat- 
ure of  private  property,  which  did  not  and  could  not  co-exist 
with  a  common  use  of  such  waters  by  all.^  The  court  then  con- 
tinued: "It  was  the  policy  of  Mexico  to  foster  and  protect  nav- 
igation. The  rivers  naturally  adapted  to  the  passage  of  water- 
craft  were  devoted  to  the  common  use  for  purposes  of  navigation. 
It  would  seem  to  be  in  the  power  of  the  sovereign  (except  so  far 
as  the  power  is  limited  by  the  constitution  of  government)  to 
authorize  such  diversions  as  shall  interfere  with  navigation.  It 
was  never  doubted  that  an  act  of  parliament  would  operate  to 
extinguish  any  public  right  to  passage.  Woolr.  Waters,  289. 
While,  however,  a  river  remained  a  navigable  river,  the  navi- 
gation was,  by  the  civil  law,  common  to  all,  unless  the  priv- 
ilege was  limited  to  a  class.  Interference  Avith  the  appropriate 
use  of  innavigable  rivers  was  not  thus  absolutely  prohibited  by 
the  Mexican  law.  The  common  use  of  the  waters  of  such  rivers 
by  all  who  could  legally  gain  access  to  them  continued  only 
while  the  waters  legally  flowed  in  their  natural  channel,  and  the 
power  of  determining  whether  the  public  good — the  purposes 
for  which  the  social  state  exists — demands  that  the  use  of  the 
whole  or  portions  of  the  waters  should  pass  as  an  exclusive  right 
to  one  or  a  class  of  individuals  remained  in  the  sovereign. 
Whether  the  power  is  an  incident  to  the  ultimate  domain  or 
right  of  disposing  of  the  property  of  the  state,  or  is  to  be  re- 
ferred to  some  other  source  or  principle,  the  Mexican  govern- 
ment employed  the  power  of  permittirg  the  diversion  of  waters 
from  innavigable  streams,  by  those  not  riparian  proprietors,  upon 

1  Among  the  authorities  cited  by  Comm.  Inst. ;  Mason  v.  Hill,  5  Barn, 

the  court    are    the   following:    2  &  Adol.  1;  Bow.  Mod.  Civil  Law, 

Just.  Inst.  1,  §§  1,  2;  Hal.  Int.  Law,  64;  Mex.  Civil  Code,  art.  1066.  See, 

147;   Movie,   Just.    184;    Escriche;  also,  Sand.  Just.  157,  159. 
Hall,    Mex.    Law,    447;    Vinnius, 
(1%) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND    NEVADA.  §    115 

such  terms  and  conditions,  "and  with  such  limitations,  as  were 
established  by  law,  or  by  usages  and  customs  which  had  the 
force  of  law.  That  government  saw  fit  to  concede  private  rights 
10  the  exclusive  use  of  the  waters  of  such  streams.  It  had  power 
to  do  this,  even  if  the  consequence  should  be  the  entire  depriva- 
tion of  the  common  use.  It  may  be  said  that  the  Mexican  laws 
which  provided  for  such  concessions  to  individuals  or  corpora- 
tions did  not  provide  for  grants  to  such  persons,  but  were  them- 
selves a  recognition  of  a  right  in  all  to  a  use  of  the  waters.  But 
a  system  which  provided  for  the  mode  of  acquisition  of  private, 
separate,  and  exclusive  rights  by  individuals  or  corporations 
cannot  be  said  to  be  merely  in  regulation  of  a  common  use. 
Those  who  appropriated  and  diverted  the  waters  of  an  innavi- 
gable river  in  accordance  with  the  laws,  obstructed  pro  tanto  its 
common  use.  Nevertheless  they  acquired  an  exclusive  right 
to  the  use  of  that  which  they  diverted,  because,  if  the}^  com- 
plied with  the  established  conditions,  their  rights  were  acquired 
"under  and  in  accordance  with  law,  and  the  waters  they  diverted 
were  no  longer  portions  of  the  waters  of  a  river,  or  subject  to 
Ihe  common  use.  No  one  of  such  had  any  right  in  or  to  the 
water  until  he  had  complied  with  the  conditions  which  author- 
ized him  to  appropriate  it.  Every  one  of  such  who  complied 
with  the  conditions,  and  appropriated  water,  acquired  a  vested 
right  in  such  water,  at  least  while  he  continued  to  use  it,  ex- 
cept in  the  single  case  where  he  acquired  a  right  merely  condi- 
tional, under  laws  which  reserved  the  power  in  the  agents  of 
the  state  or  municipality  to  deprive  him  of  it  without  indemni- 
fication."^] 

§  116.     Riparian  rights  in  Kern  district. 

[We  have  shown  that  the  common  law  regulates  the  rights 
of  riparian  owners  on  the  rivers  and  streams  of  California,  un- 

iLux  V.  Haggiu,  (Cal.)  10  Pac.  Rep.  705-711. 

(197) 


§    116  RULE   IN   CALIFORNIA    AND    NEVADA.  [Ch.  7. 

afTccted  by  the  provisions  of  the  Civil  Code.  It  is  also  held  that 
the  common  law  as  to  riparian  rights  was  not  abrogated  by  cer- 
tain statutes  of  the  state  applicable  to  a  district  of  country  within 
which  is  included  the  county  of  Kern,  nor  was  the  state  estopped 
by  such  statutes  from  asserting  its  right  to  the  flow  of  a  natural 
stream  from  that  district  to  and  over  the  lands  granted  to  the 
state  by  the  act  of  congress  of  1850.^] 

§  116.     Common  law  of  England. 

[The  rights  of  riparian  owners  in  California  are  to  be  deter- 
mined by  the  common  law,  because  these  rights  are  excepted 
from  the  operation  of  the  Code,  and  because  the  common  law 
was  adopted  as  the  rule  of  decision  in  that  state  by  the  act  of 
April  13,  1850.  This  statute,  it  is  held,  adopts  the  common 
law  of  England,  not  the  civil  law,  nor  the  "ancient  common 
law"  of  the  civilians,  nor  the  ^Mexican  law,  nor  any  hybrid  sys- 
tem. And  in  ascertaining  the  common  law  of  England,  say  the 
court,  "we  may  and  should  examine  and  weigh  the  reasoning 
of  the  decisions,  not  only  of  the  English  courts,  but  also  of  the 
courts  of  the  United  States,  and  of  the  several  states,  down  to 
the  present  time."  "The  report  of  the  proceedings  of  the  legis- 
lature shows  that  there  was  a  considerable  minority  in  favor  of 
the  adoption  of  the  civil  law;  and  there  are  circumstances  ap- 
pearing from  the  proceedings  tending  to  prove  that  the  advan- 
tages of  each  system,  as  the  fundamental  law  of  the  future,  were 
discussed  and  fully  considered.  Under  these  circumstances,  we 
must  believe  that,  if  it  had  been  intended  to  exclude  the  com- 
mon law  as  to  the  riparian  right,  the  intention  would  have  been 
expressed.  Moreover,  it  is  a  well-established  principle  that, 
when  the  legislature  of  this  state  has  enacted  a  statute  like  one 
previously  existing  in  other  states,  the  courts  here  may  look  to 

iLux  V.  Haggin,  (Cal.)  10  Pac.  Rep.  735 
(198) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND    NEVADA.  §    118 

the  interpretation  of  such  statute  by  the  courts  of  the  other 
states."^] 

§  117.     Who  are  riparian  owners. 

[Where  a  party  has  a  contract  for  the  purchase  of  lands  ad- 
joining a  river,  upon  conditions  not  yet  fulfilled  by  him,  he  has 
not  yet  acquired  the  fee,  and  cannot  invoke  the  doctrine  of  ri- 
parian rights  in  his  favor. ^  But  one  who,  though  not  a  riparian 
owner,  derives  his  right  to  the  use  of  running  water  from  a  ri- 
parian proprietor,  may  restrain  an  interference  with  such  right 
by  an  upper  riparian  proprietor  who  uses  the  water  for  purposes 
not  riparian.^  So  where  adjoining  land-owners  agree  that  the 
waters  of  a  certain  stream  be  taken  to  a  reservoir  on  the  land  of 
one  of  them,  and  that  the  other  shall  conduct  half  of  the  water 
through  ditches  to  his  land,  these  are  covenants  that  run  with 
the  land,  and  the  successor  of  either  party  has  no  right  to  go  to 
a  point  higher  up  than  where  the  stream  reaches  their  adjoining 
lands,  and  convey  the  water  to  his  land  by  some  different  means, 
and  claim  the  whole  of  it  for  his  own  use.*] 

§  118.     Prescriptive  water-rights. 

[While  the  common  law  recognizes  no  such  thing  as  an  ex- 
clusive right  acquired  by  mere  priority  of  appropriation  of  wa- 
ter, it  must  be  remembered  that  the  riparian  owner  may  obtain 
exclusive  interests  in  the  stream  b}^  grant  or  by  prescription. 
In  regard  to  the  last  named  it  is  said:  "The  right  acquired  by 
prescription  is  only  commensurate  with  the  right  enjoyed.  The 
extent  of  the  enjoyment  measures  the  extent  of  the  right.  The 
right  gained  by  prescription  is  always  confined  to  the  right  as 

lid.  746,749.  3 Williams     v.   Wadsworth,    51 

2 Smith  V.  Logan,  18  Nev.  149,  s.      Conn.  277. 
C.  1  Pac.  Rep.  678.  « Weill  v.  Baldwin,  64  Cal.  476, 

8.  c.  3  Pac.  Rep.  249. 

(199) 


§    119  RULE    IN  CALIFORNIA   AND   NEVADA.  [Cll.  7. 

exercised  for  the  full  period  of  time  required  by  the  statute, 
which  is,  in  this  state,  five  years.  A  party  claiming  a  prescrip- 
tive right  for  five  years,  who,  Avithin  that  time,  enlarges  the 
use,  cannot,  at  the  end  of  that  time,  claim  the  use  as  enlarged 
within  that  period."*  The  owner  of  a  mill-dam  cannot  acquire 
a  right  by  prescription  to  overflow  adjoining  lands  while  they 
belong  to  the  United  States  or  to  the  state.^  And  so,  if  a  party 
has  acquired  by  prescription  a  right  to  divert  water  so  that  it 
flows  into  a  creek  running  throv.gh  his  neighbor's  land,  such 
prescriptive  right  does  not  extend  to  the  overflowing  of  the  war 
ter  over  such  land  to  the  neighbor's  injury.^] 

II.     Uses  to  Which  the  Water  may  be  Put. 

§  119.     General  statement  of  riparian  rights — Van 
Sickle  V.  Haines. 

It  thus  appearing  that  the  title  of  the  Code  concerning  water- 
rights  has  no  apjilication  to  nor  operation  upon  the  riparian 
rights  of  private  riparian  proprietors  who  hold  the  title  to  tracts 
of  land  on  the  banks  of  natural  running  streams  in  this  state; 
that  those  rights  are  left  existing  as  they  have  been  declared  by 
judicial  decisions  made  before  and  since  the  adoption  of  the 
Code;  and  that  those  rights  have  thus  been  declared  by  judicial 
decisions  to  be  substantially  the  same  as  the  rights  created,  rec- 
ognized, regulated,  and  protected  by  the  common-law  doctrines 
relating  to  the  subject, — we  are  now  in  a  position  to  inquire, 
with  more  of  detail,  what  are  the  nature,  extent,  and  limits  of 
the  rights  held  by  private  riparian  proprietors  in  California; 
what  uses  of  the  water  of  streams  do  they  confer,  permit,  or  for- 

iBoynton  v.  Longley,  (Nev.)  6        STuckerv.  Salem  Flouring-Mills 
Pac.  Rep.  437,  Hawley,  J.  Co.,  13  Or.  28,  s.  c.  7  Pac.  Rep.  53. 

2Wattier  v.  Miller,  11  Or.  329,  s. 
C.  8  Pac.  Rep.  35-4. 

(200) 


Ch.  7.]  RULE   IN   CALIFORNIA    AND    NEVADA.  §   119 

"bid;  with  special  attention  to  the  inquiry  whether  they  permit 
the  use  of  water  for  purposes  of  irrigation,  and,  if  so,  to  what 
extent  and  under  what  limitations.  As  a  preliminary  to  this 
proposed  examination,  I  shall  quote  at  some  length  from  a  de- 
cision made  by  the  supreme  court  of  Nevada,  which  covers  all 
of  the  questions.  The  same  physical  conditions  affecting  the 
use  of  water  exist  in  both  states,  and  in  both  the  common-law 
■doctrines  concerning  the  rights  of  private  riparian  proprietors 
are  recognized  as  substantially  controlling.  These  facts  alone 
would  recommend  the  decision  to  the  attention  of  the  courts  and 
profession  of  California;  but  the  decision  itself  is  so  important, 
and  the  opinion  of  Chief  Justice  Lewis  is  so  able,  learned,  and 
exhaustive,  that  no  excuse  is  needed  for  the  long  extracts  which 
I  have  made.  If  the  common-law  doctrines  still  determine  and 
regulate  the  rights  of  private  riparian  proprietors  in  our  own 
state,  it  is  proper  to  know  what  these  doctrines  are,  how  the}- 
have  been  settled,  and  upon  what  authority  the}'  rest.  The 
facts  of  the  case  present  in  a  marked  manner  the  distinction  be- 
tween the  appropriation  of  water  from  streams  while  flowing 
wholly  over  the  public  lands  of  the  United  States,  and  the  rights 
to  the  water  held  by  a  proprietor  who  has  acquired  a  title  as 
private  owner  to  a  tract  of  land  bordering  uj^on  a  stream.  The 
opinion  shows  in  the  clearest  manner  the  general  nature,  extent, 
and  limits  of  the  rights  possessed  by  such  private  riparian  pro- 
prietor, as  estaljlished  by  the  overwhelming  consensus  of  author- 
ities, English  and  American.  Unless  I  am  entirely  wrong  in 
the  construction  placed  upon  the  title  in  the  Civil  Code,  and 
unless  the  decisions  of  the  California  suj^reme  court,  heretofore 
quoted,  are  to  be  wholly  disregarded,  then,  as  it  seems  to  me, 
the  opinion  of  Chief  Justice  Lewis,  in  its  reasoning  and  its  con- 
clusions, applies  to  and  defines  the  rights  of  private  riparian 
proprietors  in  California,  with  one  modification,  to  be  subse- 
quently mentioned,  growing  out  of  a  more  recent  statute  of  con- 

(201) 


§119  RULE   IN   CALIFORNIA    AND   NEVADA.  [Ch.  7. 

gross.     The  case  to  wliich  I  refer,  and  from  which  I  now  pro- 
ceed to  quote,  is  Van  Sickle  v.  Haines.^ 

The  facts  were  briefly  as  follows:  In  1857  the  plaintiff,  Van 
Sickle,  diverted  a  portion  of  the  waters  of  Daggett  creek,  a  nat- 
ural innavigable  stream,  by  means  of  a  ditch  for  irrigating  and 
domestic  purposes,  to  be  used  upon  a  tract  of  land  in  his  pos- 
session not  situated  upon  the  banks  of  said  creek.  The  diver- 
sion was  made  at  a  point  then  on  the  public  land,  but  the  tract 
of  land  bordering  on  the  creek  and  including  this  point  was,  in 
1864,  conveyed  by  patent  from  the  United  States  to  the  defend- 
ant Haines.  In  1865  Van  Sickle  obtained  a  patent  from  the 
United  States  for  the  tract  in  his  possession,' on  which  he  used 
the  water.  In  18G7  Haines  constructed  a  flume  on  his  own 
land,  and  by  its  means  diverted  the  water  of  the  creek  for  the 
benefit  of  his  own  riparian  tract  of  land,  and  thereby  deprived 
Van  Sickle  of  the  supi)ly  of  water  which  he  had  been  using. 
In  1870  Van  Sickle  brought  an  action,  which  resulted  in  a 
judgment  for  damages  against  Haines,  and  a  perpetual  injunc- 
tion restraining  him  from  interfering  with  the  plaintifPs  prior 
appropriation.  It  should  be  carefully  noticed  that  the  plain- 
tiff, Van  Sickle,  was  not  a  riparian  proprietor.  On  appeal,  the 
judgment  was  reversed  by  the  supreme  court,  and  a  decree  was 
ordered  for  the  defendant  dismissing  the  suit.  The  court  held, 
among  other  points,  that,  since  there  can  be  no  title  acquired 
by  adverse  user  against  the  United  States,  the  time  during 
which  a  person  diverts  water  from  a  stream  wholly  on  the  pub- 
lic land,  previous  to  the  issue  of  a  patent  to  a  private  riparian 
proprietor,  cannot  be  set  up  as  an  adverse  user  against  such  pat- 
entee. The  same  has  been  held  by  California  decisions."  The 
jjlaintifF  presented  a  petition  for  a  rehearing,  and  thereupon  a 
second  most  able  and  exhaustive  opinion  by  Lewis,  C.  J,,  was 

1 7  Ne V.  249.  2  Pope  v.  Kinman,  54  Cal.  3. 

(202) 


Ch.  7.]  RULE    IN   CALIFORNIA    AND    NEVADA.  §    119 

delivered,  from  which  I  shall  quote  several  passages  that  seem 
to  bear  upon  the  general  questions  under  discussion.  This 
opinion  opens  with  some  preliminary  observations  which  are 
peculiarly  appropriate  and  instructive,  (pages  257,  258:)  "We 
are  unable  to  understand  from  the  petition  what  exact  condi- 
tion is  assigned  to  running  water  in  the  catalogue  of  rights  or 
property;  or  what  the  nature  of  the  title  which  may  be  acquired 
to  it,  if  any.  Much  thereof  is  devoted  to  showing  that  there 
can  be  no  property  in  running  water;  that  it  is,  and  must  of 
necessity  remain,  common  to  all;  that  it  is  a  thing  'the  prop- 
erty of  which  belpngs  to  no  person,  but  the  use  to  all;'  and  in 
the  same  sentence  it  is  said  that  it  '  is  publici  juris,  res  communis^ 
and  honum  vacuus.''  This  abandon  in  the  use  of  legal  expres- 
sions is  evidently  the  result  of  a  radical  misunderstanding  of 
the  signification  which  is  given  to  them  in  the  books  of  law. 
True,  it  is  often  said  that  water  is  'pvhlici  juris,  or  belongs  to 
those  things  which  are  res  communes;  but  how  it  can  be  either 
publici  juris  or  res  communis  and  also  bonum  vacans  is  a  problem 
not  yet  solved  in  the  science  of  the  law.  If  common  property, 
or,  as  argued  by  counsel,  something  in  which  no  one  has  an  ab- 
solute property,  but  every  one  has  the  use,  the  right  to  the  use 
must  then  certainly  be  in  the  community;  but  bonum  vacans  is 
a  thing  without  an  owner  of  any  kind,  and  which  belongs  ab- 
solutely to  the  person  who  may  first  find  or  appropriate  it,  and 
he  has  the  complete  right  of  property  in  it  as  against  the  world. 
It  is  a  flat  contradiction,  in  terms,  to  say  that  running  water  is- 
at  the  same  time  common  property  and  bonum  vacans.  But  we 
have  the  word  of  Lord  Denman  in  Mason  v.  Hill,'  and  of  Baron 
Parke  in  Embrey  v.  Owen's  Ex'rs,^  that  it  was  never  consid- 
ered bonum  vacans.  Nor  are  these  contradictions  confined  sim- 
ply to  legal  terms.     The  argument  proceeds  upon  the  assump- 

15  Barn  &  Adol.  23.  25  Exch.  353. 

(203) 


§119  RULE   IN    CALIFORNIA    AND    NEVADA.  [Ch.  7. 


tion  that  running  water  belongs  to  the  community  generally, 
and  authorities  are  cited  which  are  supposed  to  sustain  that  doc- 
trine, as  tlic  quotation  from  Blackstone,  who  says,  '  water  flow- 
ing is  publici  juris.  By  the  Roman  law,  water,  light,  and  air 
were  res  communes,  and  which  were  defined  things,  the  property 
of  which  belongs  to  no  person,  but  the  use  to  all.'  Yet,  after 
arguing  to  show  that  water  is  common  property,  it  is  also 
claimeil  that  a  stream  may  be  absolutely  appropriated  by  the 
first  person  who  may  wish  to  u«;e  it.  In  other  words,  that  wa- 
ter, instead  of  being  something  which  belongs  to  all  in  com- 
mon, as  is  argued  at  first,  is  a  thing  which  belongs  absolutely 
to  him  who  first  api)ropriated  it,  to  the  extent  even  that,  if  it 
be  necessary  for  the  purpose  for  w^hich  the  appropriation  is 
made,  it  may  be  completely  consumed.  Surely,  the  two  prop- 
ositions are  as  irreconcilably  contradictory  as  any  that  can  be 
named.  As  an  illustration,  it  is  argued  that  running  water  is 
like  the  air,  to  which  certainly  all  have  an  equal  right,  and  with 
which  no  one  has  the  right  to  interfere  to  the  injury  of  another. 
But  in  tliis  case  the  right  is  claimed  Ijy  Van  Sickle  to  deprive 
the  appellant  of  the  stream,  which  in  the  ordinary  course  of 
things  he  would  be  enabled  to  enjoy,  and  to  appropriate  it  ex- 
clusively to  himself.  If  running  water  be  like  the  air,  then 
surely  no  one  has  the  right  to  interfere  with  it  in  its  natural 
state  to  the  prejudice  of  others.  When  positions  so  utterly  con- 
tradictory are  assumed,  the  real  questions  in  the  case  are  likely 
to  be  involved  and  obscured,  rather  than  elucidated."  The  fol- 
lowing observations  concerning  the  influence  which  the  "pulilic 
interests"  should  have  upon  the  decisions  of  cases  involving  pri- 
vate rights,  are  of  weighty  importance  in  this  community  as 
well  as  in  Nevada  and  every  other  state.  While  courts  most 
certainly  have  a  legislative  function,  since  the  great  body  of 
connnon  law  and  of  equity  has  been  built  up  by  courts,  it  should 
never  l)e  forgotten  that  courts  do  not  rightfully  possess  the 
(204) 


Ch.  7.]  RULE    IN    CALIFORNIA   AND    NEVADA.  §    119 

power  of  legislating //WH  motives  'of  mere  policy  or  expediency.  The 
duty  of  courts  is  to  declare  and  protect  private  rights  of  suitors 
by  applying  or  extending  some  established  principle  or  doctrine 
to  new  conditions  of  facts.  The  court  say,  (})age  259:)  "Be- 
fore proceeding  to  an  investigation  of  the  legal  questions  really 
involved  in  the  case,  we  may  state,  once  for  all,  that,  the  fact 
that  the  case  is  of  great  interest  to  the  public,  whose  rights,  it 
is  claimed,  'are  seriously  disturbed  by  the  decision,' is  a  con- 
sideration which,  in  very  doubtful  cases,  may,  and  perhaps 
should,  have  some  weight  with  judicial  tribunals.  But  that 
the  interests  of  the  public  should  receive  a  more  favorable  con- 
sideration than  those  of  any  individual,  or  that  the  legal  rights 
of  the  humblest  person  in  the  state  sliould  be  sacrificed  to  the 
weal  of  the  man}',  is  a  doctrine  which,  it  is  to  be  hoped,  will 
never  receive  sanction  from  the  tribunals  of  this  country.  The 
public  is  in  nothing  more  interested  than  in  scrupulously  pro- 
tecting each  individual  citizen  in  every  right  guarantied  to  him 
by  the  law,  and  in  sacrificing  none,  not  even  the  most  trivial, 
to  further  its  own  interests.  Every  individual  has  the  right, 
equally  with  the  public  at  large,  to  claim  a  fair,  impartial  con- 
sideration of  his  case;  for  the  rights  of  the  public  are  no  more 
sacred,  or  entitled  to  greater  protection  in  law,  than  those  of  the 
individual;  and  therefore,  in  actions  between  individuals,  the 
consideration  of  public  interest  has  weight  only  when  there  is 
grave  doubt  as  to  where  the  right  lies.  This  doctrine  which 
would  justify  the  courts  in  depriving  a  person  of  a  civil  right 
to-day  for  the  public  good,  might  to-morrow  force  them  to  sac- 
rifice his  life  to  the  clamor  of  a  mob;  which  would  deprive 
Haines  of  his  property  at  one  time,  might  operate  against  Van 
Sickle  at  another.  As  in  tliis  case  we  have  no  doubt  whatever 
as  to  what  should  be  our  conclusion,  the  fact  that  it  may  inju- 
riously affect  the  public  can  have  no  weight  in  its  consideration. 
Happily,  however,  we  do  not  think  the  decision,  if  properly  un- 

(205) 


§   119  RULE   IN    CALIFORXIA    AND    NEVADA.  [Ch.  7. 

(.Icrstood,  will  produce  the  general  disastrous  results  appre- 
hended by  counsel."  Coming  to  the  merits  of  the  case,  the 
learned  chief  justice  states  the  material  questions  to  be  consid- 
ered and  determined,  (page  260:)  "As  the  appellant  claims  the 
water  of  Daggett  creek  as  an  incident  to  the  land  patented  to 
him  by  the  United  States,  and  as  it  is  admitted  that  he  could 
get  only  such  title  and  right  as  was  vested  in  the  United  States 
itself,  it  becomes  necessary  to  ascertain  what  is  the  nature  of 
the  rights  of  the  federal  government  to  the  public  land,  and  we 
purpose  to  show  (1)  that  the  United  States  has  the  absolute 
and  perfect  title;  (2)  that  running  w^ater  is  primarily  an  inci- 
dent to  or  part  of  the  soil  over  which  it  naturally  flows;  (3)  that 
the  right  of  the  riparian  proprietor  does  not  depend  upon  the 
appropriation  of  the  water  by  him  to  any  special  purpose,  but 
that  it  is  a  right  incident  to  his  ownership  in  the  land  to  have 
the  water  flow  in  its  natural  course  and  condition,  subject  only 
to  those  changes  which  may  be  occasioned  by  such  use  by  the 
proprietors  above  him  as  the  law  permits  them  to  make  of  it; 
(4)  that  the  government  patent  conveyed  to  Haines  not  only  the 
land,  but  the  stream  naturally  flowing  through  it;  (5)  that  the 
common  law  is  the  law  of  this  state,  and  must  prevail  in  all 
cases  where  the  right  to  water  is  based  upon  the  absolute  own- 
ership of  the  soil."  The  chief  justice  follows  this  statement  by 
an  elaborate  argument  and  citation  of  authorities  showing  that 
the  United  States  has  the  absolute  title  in  fee-simple  in  all  the 
public  lands,  to  the  same  extent  and  in  like  manner  as  any  pri- 
vate owner  has;  and  that  this  title  includes  all  the  incidents  and 
power  of  absolute  private  ownership,  (pages  261-264.)  As  the 
correctness  of  these  conclusions  is  undoubted,  it  is  unnecessary 
to  quote  this  portion  of  the  opinion.  He  then  proceeds  to  con- 
sider the  right  to  water  as  an  incident  of  ownership,  (page  264:) 
"Being  absolute  owner  of  the  soil,  the  source  of  all  title  thereto, 
and  entitled  to  all  the  remedies  for  its  protection  and  preserva- 
(206) 


Ch.  7.]  RULE   IN   CALIFORNIA    AND   NEVADA.  §   119 

tion  which  are  given  to  any  individual  owner,  it  certainly  can- 
not be  maintained  that  the  United  States  is  not  equally  enti- 
tled to  everything  which  is  naturally  such  an  inseparable  inci- 
dent to  the  land  that  it  is  frequently  spoken  of  as  a  part  of  the 
soil  itself.  Such  an  incident  is  a  natural  water-course.  It 
passes  by  deed  of  the  soil  without  any  mention,  and  forms  as 
marked  a  feature  of  the  land  through  which  it  passes  as  the  trees 
upon  it  or  the  vegatation  which  it  nourishes.  Nothing  more 
readily  recommends  itself  to  the  understanding  than  that  an 
clement  which  the  laws  of  nature  have  connected  with  the  free- 
hold, and  which,  without  any  effort  on  the  part  of  man,  clothes 
it  with  refreshing  verdure, — when  without  it  there  must  be 
only  forbidding  nakedness;  creating  fertility  and  productiveness 
where  otherwise  tliere  would  be  only  sterility;  at  once  adminis- 
tering pleasure  and  affording  profit, — is  necessarily  a  part  of  or 
incident  to  his  land.  This  is  the  natural  effect  of  running  wa- 
ter, independent  of  an}'-  use  which  may  be  made  of  it  in  admin- 
istering to  the  immediate  wants  of  man  and  beast.  How  fre- 
quent is  it  that  small  streams  of  water  are  found  to  add  im- 
measurably to  the  value  of  estates,  even  where  no  particular  use 
is  made  or  intended  to  be  made  of  them.  It  is  very  seldom,  in- 
deed, that  they  do  not  to  some  extent  enhance  the  value  of  real 
property,  and  they  are  frequently  esteemed  invaluable.  *  *  * 
How  can  it  be  said,  then,  that  a  water-course  is  not  essentially 
a  part  of  the  freehold  itself.  That  it  is  so,  the  authorities 
bear  abundant  witness.  We  do  not  wish  to  be  understood  as 
saying  that  there  is  such  an  absolute  property  in  the  water  that 
the  whole  stream  may  be  destroyed  by  a  riparian  proprietor,  so 
that  others  below  him  will  be  deprived  of  it;  but  that  it  is  an 
incident  of  his  land  to  the  extent  that  he  has  the  right  to  have 
it  continue  to  flow  in  its  natural  course,  subject  to  such  changes 
only  as  may  be  occasioned  by  such  use  of  it  as  the  law  allows 
the  various  proprietors  to  make,  as  it  passes  along,  and  which 

(207) 


§    119  RULE    IN   CALIFORNIA    AND   NEVADA.  [Ch.  7. 

will  be  hereafter  more  fully  explained.  In  this  sense  only  is 
the  right  to  be  understood,  when  spoken  of  in  the  authorities 
about  to  be  quoted."  Tiie  opinion  then  quotes  numerous  au- 
thorities, and  it  may  not  be  inappropriate  to  copy  those  which 
are  cited  from  Ai'nerican  decisions. 

After  (]Uoting  the  general  definitions  given  by  Lord  Coke  and 
by  Mr.  Angell,  the  chief  justice  proceeds,  (page  266:)  "The  su- 
preme court  of  Ohio  says:*  'The  uses  of  the  waters  of  private 
streams  belong  to  the  owners  of  the  land  over  which  they  flow. 
They  are  as  nmch  individual  property  as  the  stones  scattered 
over  the  soil.'  Chancellor  Kent  says:"  'A  right  to  a  stream  of 
water  is  as  sacred  as  a  right  to  the  soil  over  which  it  flows.  It 
is  a  part  of  the  freehold  of  which  no  man  can  be  disseized  but 
by  the  lawful  judgment  of  his  peers,  or  by  due  process  of  law.' 
It  is  said  in  the  note  to  Ex  parte  Jennings:^  'The  general  dis- 
tinction deemed  of  so  much  excellence  and  importance  by  these 
learned  judges,  and  which  at  this  day  no  lawyer  will  hazard  his 
reputation  by  controverting,  is  that  rivers  not  navigable — that  is^ 
fresh-water  rivers  of  what  kind  soever,  do  of  common  right  be- 
long to  the  owners  of  the  soil  adjacent,  to  the  extent  of  their 
land  in  length;  but  that  rivers  where  the  tide  Qbbs  and  flows  be- 
long of  common  right  to  the  state.'  In  Wadsworth  v.  Tillot- 
son,^  speaking  of  the  rights  to  a  water-course,  the  supreme  court 
says:  'This  right  is  not  an  easement  or  appurtenance,  but  is 
inseparably  annexed  to  tlie  soil,  and  is  parcel  of  the  land  itself.  '^ 
Chief  Justice  Shaw  says:^  'The  right  to  flowing  water  is  now 
well  settled  to  be  a  right  incident  to  property  in  the  land.'  In 
another  case  the  same  judge  says:^  'It  is  inseparably  annexed 
to  the  soil,  and  passes  with  it,  not  as  an  easement  or  as  an  appur- 

^  Buckingham  v.  Smith,  10  Ohio,  ^js  Conn.  373. 

297.  5 Elliot  V.  Fitchburg  R.  R.,   !(> 

2 Gardner    v.    Village    of    New-  Cush.  19.3. 

burgh,  2  .Johns.  Ch.  166.  «  Johnson  v.  Jordan,  3  Mete.  239. 

3  6  Cow.  .543. 

(208) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND    NEVADA.  §    119 

tenance,  but  as  jjarcel.  Use  does  not  create  it,  and  disuse  can- 
not destroy  nor  suspend  it.'  The  supreme  court  of  North  Car- 
olina says:^  'The  right  is  not  founded  in  user,  but  is  inherent 
in  the  ownership  of  the  soil,  and,  when  a  title  by  use  is  set  up 
as  against  another  proprietor,  there  must  be  an  enjoyment  for 
such  a  length  of  time  as  will  be  evidence  of  a  grant.'  *  *  * 
'The  common  right  here  spoken  of  is  not  that  existing  in  all 
men  in  respect  to  things  publici  juris,  but  that  common  to  the 
proprietors  of  the  land  on  the  stream.  And,  as  between  them, 
the  use  to  which  one  is  entitled  is  not  that  which  he  happens 
to  get  before  another,  but  it  is  that  which,  by  reason  of  his  own- 
ership of  the  land  on  the  stream,  he  can  enjoy  on  his  land  and 
as  appurtenant  to  it.'  The  supreme  court  of  Vermont  say:* 
'  The  owner  of  land  has  rights  to  the  use  of  a  private  stream  run- 
ning over  his  land  peculiar  to  himself  as  owner  of  the  land,  not 
derived  from  occupancy  or  appropriation,  and  not  common  to 
the  whole  community.  It  is  the  right  to  the  natural  flow  of  the 
stream.  Of  this  right  he  cannot  be  deprived  by  the  mere  use 
or  appropriation  by  another,  but  only  by  grant,  or  by  the  use 
or  occupancy  of  another,  for  such  length  of  time  as  that  there- 
from a  grant  may  be  presumed . ' "  The  right  to  the  water  of  run- 
ning streams  being  thus  an  incident  of  ownership  by  a  riparian 
proprietor  is  held  by  the  United  States  as  completely  as  by  any 
private  owner,  and  necessarily  passes  to  its  grantee  by  the  pat- 
ent which  conveys  the  full  legal  title  to  the  tract  of  land  border- 
ing on  the  stream.  In  examining  still  more  closely  the  nature 
of  the  right,  and  showing  that  it  does  not  depend  upon  actual 
use  or  appropriation  of  the  water  by  a  riparian  owner,  the 
learned  chief  justice  most  ably  proceeds  as  follows,  (pages  268— 
272:)  "If  a  stream  be  an  incident  to  the  land,  it  can  no  more 
be  diverted,  simply  because  it  cannot  be  presently  used  by  the 

iPugh  V.  Wheeler,  2  Dev.  &  B.  55. 
2  Davis  V.  Fuller,  13  Vt.  178. 
poM.Rip.— 14  (209) 


§    119  RULE    IN   CALIFORNIA   AND    NEVADA.  [Ch.  7. 

person  owning  the  land,  than  he  can  be  deprived  of  any  other 
property  for  the  same  reason.  The  whole  argument  on  this 
point  evidently  originates  out  of  an  utter  misunderstanding  of 
what  is  meant  by  the  language,  when  it  is  said  that  the  riparian 
proprietor  'has  no  property  in  the  water  itself,  but  simply  a 
usufruct  while  it  passes  along.'  The  reason  for  this  expression 
is  this :  tliat  as  each  proprietor  has  a  right  to  the  flow  of  the 
stream  through  his  land  as  it  was  wont  to  flow,  as  it  is  the  com- 
mon property  of  all  the  owners  of  the  soil  through  which  it 
passes,  no  one  of  them  can  have  such  a  property  in  the  water  as 
will  entitle  him  to  consume  or  divert  it  all  from  those  on  the 
stream  below  him,  as  he  might  do  if  he  had  an  absolute  prop- 
erty in  the  water  itself;  hence  the  expression  so  often  used.  It 
is,  however,  never  employed  as  limiting  the  entire  right  of  the 
riparian  proprietor  to  the  mere  use  of  the  water.  He  has  another 
right,  and  one  which  is  universally  admitted;  that  is,  the  right 
to  have  the  stream  continue  to  flow  through  his  land,  irrespect- 
ive of  whether  he  may  need  it  for  any  special  purpose  or  not. 
He  has  the  right  to  the  natuial  benefit  which  a  stream  affords, 
independent  of  any  particular  use,  for  the  fertility  which  its  nat- 
ural flow  imjiarts  to  the  soil.  In  other  words,  his  right  has  a 
double  aspect:  First,  the  right  of  having  the  course  of  the  stream 
continued  through  his  land,  which  is  absolute  and  complete,  as 
against  all  the  world;  and,  secondly,  the  right  to  make  such  use 
of  the  water,  as  it  passes  through  his  land,  as  will  not  damage 
those  who  are  located  on  the  same  stream,  and  are  entitled  to 
equal  rights  with  himself.  If  this  be  not  the  character  of  his 
right,  what  is  to  be  understood  by  the  maxim  too  often  quoted, 
and  which  lies  at  the  foundation  of  water-rights,  aqua  currit  et 
debet  currere  ut  currere  solebatf  This  is  substantially  that  no 
man  has  the  right  to  divert  a  stream  from  its  natural  course; 
for  to  say  that  water  should  be  permitted  to  run  as  it  used 
to,  is  a  prohibition  upon  all  to  divert  it  from  its  course;  and 
(210) 


Ch.  7.]  RULE    IN   CALIFORNIA   AND   NEVADA.  §    119 

thus  the  very  maxim  shows  the  proprietors  have  the  right  to 
claim  that  the  stream  shall  be  permitted  to  run  through  their 
land  in  its  natural  channel,  independent  of  whether  they  make 
any  particular  use  of  it  or  not.  Suppose  there  be  a  water- fall  or 
water-power  upon  a  tract  of  land,  and  it  may  be  supposed  that 
the  tract  is  valuable  only  for  a  mill-site,  but  is  not  presently 
used,  will  it  be  said  that  its  whole  value  may  be  destroyed  by 
the  diversion  of  the  water,  or  that  a  valuable  mineral  sirring, 
which  is  not  yet  used,  may  be  abstracted  from  it,  and  that  the 
owner  had  no  remedy,  simply  because  he  had  not  appropriated 
it  to  some  useful  purpose  when  the  diversion  or  abstraction  took 
place?  Indeed,  the  authorities  are,  without  exception,  that  the 
right  to  have  the  water  flow  in  its  accustomed  channel  does  not 
depend  upon  the  fact  that  any  special  use  is  or  may  be  made  of 
it  by  the  proprietors;  and  no  case,  no  dictum,  and  no  intima- 
tion of  opinion  to  the  contrary,  when  rightly  understood,  can 
be  found  in  the  books.  It  is  said  by  Mr.  Phear^  'that  every  ri- 
parian proprietor  has  a  right,  whether  he  uses  the  stream  or 
not,  to  have  its  natural  conditions  within  his  own  limits  pre- 
served from  sensible  disturbances  arising  from  acts  on  the  part 
of  the  riparian  proprietors,  whether  above  or  below,  or  on  the 
opposite  banks.'  The  court  of  king's  bench  say  :^  '  The  propo- 
sition that  the  first  occupant  of  running  water  for  a  beneficial 
purpose  has  a  good  title  to  it,  is  perfectly  true  in  this  sense,  viz., 
that  neither  the  owner  of  the  land  below  can  pen  back  the  wa- 
ter, nor  the  owner  of  the  land  above  divert  it  to  his  prejudice. 
In  this,  as  in  any  other  case  of  injury  to  real  property,  posses- 
sion is  a  good  title  against  a  wrong-doer,  and  the  owner  of  the 
land  who  applies  the  stream  that  runs  through  it  to  the  use  of 
a  mill  newly  erected,  or  to  other  purposes,  if  the  stream  is  di- 
verted or  obstructed,  may  recover  for  the  consequential  injury 

iPhear,  Water-Courses,  31. 
'Mason  v.  Hill,  5  Barn  &  Adol.  11. 

(211) 


§    119  RULE    IN  CALIFORNIA    AND    NEVADA.  [Ch.  7. 

to  the  mill.  But  it  is  a  very  different  question  whether  he  can  take 
away  from  the  owner  of  the  land  below  one  of  its  natural  advantageSy 
which  is  capable  of  being  applied  to  profitable  purposes,  and 
generally  increases  the  fertility  of  the  soil  even  where  unapplied^ 
and  deprive  him  of  it  altogether  by  anticipating  him  in  its  ap- 
plication to  a  useful  propose.  If  this  be  so,  a  considerable  part 
of  the  value  of  an  estate  might  at  any  time  be  taken  away;  and 
by  parity  of  reasoning  a  valuable  mineral  spring  might  be  ab- 
stracted from  the  proprietor  in  whose  land  it  rises,  and  converted 
to  the  profit  of  another.'  Mr.  Justice  Creswell  says:^  'It  ap- 
pears to  us  that  all  persons  owning  lands  on  the  margin  of  a 
flowing  stream  have,  by  nature,  certain  rights  to  use  the  water 
of  that  stream,  whether  they  exercise  those  rights  or  not.'  And 
Lord  Ellenborough  says:^  *The  general  rule  of  law  as  applied 
to  this  subject  is  that,  independent  of  any  particular  enjoyment 
used  or  to  be  had  by  another,  every  man  has  a  right  to  have 
the  advantage  of  a  flow  of  water  in  his  own  land.'  The  supreme 
court  of  Massachusetts  says:^  'If  the  use  which  one  makes  of 
his  right  in  the  stream  is  not  a  reasonable  use,  or  if  it  causes  a 
substantial  and  actual  damage  to  the  proprietor  below  by  dimin- 
ishing the  value  of  his  land,  though  at  the  same  time  he  has  no 
mill  or  other  work  to  sustain  present  damage,  still,  if  the  party 
then  using  it  has  not  acquired  a  riglit  by  grant,  or  by  actual 
appropriation  and  enjoyment  for  twenty  years,  it  is  an  encroach- 
ment on  the  right  of  the  lower  proprietor  for  which  an  action 
will  lie.'  The  learned  Chief  Justice  Ruffin  of  North  Carolina 
says  upon  this  point:*  '  The  argument  of  the  counsel,  however, 
assumes  that  the  right  to  water  can  be  acquired  only  by  use, 
and  therein  we  think  consists  its  error.     The  dicta  on  which  he 


1  Sampson  V.  Hoddinott.  1  C.  B.         ^EHJot  y_  Fitchburg  R.  R.,  10 
(N.  S.)611.  Cush.  191. 

*Bealey  v.  Shaw,  6  East.  208.  *Pugh.  v.  Wheeler,  3  Dev.  &  B. 

60. 

(212) 


Ch.  7.]  RULE    IX    CALIFORNIA   AND    NEVADA.  §    119 

relies  had  reference  to  the  cases  of  prescriptive  title,  or  where 
the  party  had  only  the  rights  of  a  possessor.  But  it  is  not  true 
that  the  right  to  water  is  acquired  only  by  its  use,  and  that  it 
•cannot  exist  independent  of  any  particular  use  of  it.  That  doc- 
trine is  correctly  applied  to  the  air  and  to  the  sea,  or  such  bod- 
ies of  water  as  from  their  immensity  cannot  be  appropriated  by 
individuals,  or  ought  to  be  kept  as  common  highways  for  the 
constant  use  of  the  country  and  the  enjoyment  of  all  men.  In 
such  case  particular  persons  cannot  acquire  a  right, — that  is,  a 
several  and  exclusive  right,  by  use  or  any  other  means;  but 
with  smaller  streams  it  is  otherwise.  They  may  still  be  publici 
juris,  so  far  as  to  allow  all  persons  to  drink  the  water  and  the 
like,  and  also  so  far  as  to  prevent  a  person  to  whose  land  it 
■comes  from  thus  consuming  it  entirely  by  applying  it  to  other 
purposes  than  those  for  which  it  is  conceded  to  every  one, 
ad  lavnndum  et  potandum,  as  to  divert  or  corrupt  it.'  And  the 
supreme  court  of  New  York  says:  ^  'A  person  through  whose 
farm  a  stream  naturally  flows  is  entitled  to  have  it  pass  through 
his  land,  although  he  ma}^  not  require  the  whole  or  any  part 
of  it  for  the  use  of  machinery.  Upon  any  other  principle  this 
right  to  the  stream,  which  is  as  perfect  and  indefeasible  as  the 
right  to  the  soil,  would  always  depend  upon  the  use,  and  a  party 
who  did  not  occupy  the  whole  for  special  purposes  would  be 
■exposed  to  have  the  same  diverted  by  his  neighbor  above  him 
without  remedy,  and  which  diversion  by  twenty  years'  enjoy- 
ment would  ripen  into  a  prescriptive  right  beyond  his  control, 
and  thereby  defeat  any  subsequent  use.'  Such  is  the  invariable 
rule,  iterated  and  reiterated  through  all  the  books,  and  of  which 
there  seems  to  be  no  denial.  These  cases  show  that  the  owner 
of  soil  can  insist  upon  having  the  stream  continue  to  run  through 
his  land  as  it  was  wont,  independent  of  any  special  use  of  it. 

iCrooker  v.  Bragg,  10  Wend.  260.     See,  also.  Corning  v.  Troy  Iron  & 
Nail  Factory,  40  N.  Y.  191. 

(213) 


§    119  RUI.E  IN    CALIFORNIA   AND   NEVADA.  [Ch.  7. 

The  fact,  as  stated  by  Chief  Justice  RufTin,  tliat  he  is  necessarily 
and  at  all  times  using  the  water  running  through  his  land,  in 
so  far  at  least  as  the  water  imparts  fertility  to  the  soil  and  en- 
hances its  value,  is  a  sufficient  user  to  entitle  him  to  claim  that 
he  shall  not  be  deprived  of  it." 

The  learned  judge  then  proceeds  to  discuss  at  length  the  effect 
of  certain  territorial  legislation,  but  this  portion  of  his  opinion 
I  omit,  since  it  has  no  bearing  upon  any  general  questions.  The 
conclusion  of  his  opinion  touches  upon  a  subject  of  great  inter- 
est in  the  state  of  California,  and  I  shall  therefore  quote  it  at 
length,  (pages  284-287:)  "It  is  said  that  the  rule  which  is 
adopted  in  this  case  may  be  the  rule  of  the  common  law,  but 
that  it  is  not  applicable  to  our  situation,  and  therefore  should 
not  be  followed.  We  have  shown  that  a  stream  is  an  incident 
of  the  land  through  which  it  naturally  flows;  that  it  is,  in  fact,  a 
part  of  the  soil  itself;  that  the  right  to  have  it  continue  to  flow  is 
as  sacred  a  right  as  that  to  the  soil  itself;  that,  being  so  an  incident 
of  the  land,  it  necessarily  passes  by  conveyance  of  the  land.  Such 
being  the  law,  we  are  unable  to  understand  how  or  by  what  au- 
thority this  court  can  say  the  patent  of  the  United  States  does  not 
convey  as  complete  and  perfect  a  title  to  its  patentee  in  the  state 
of  Nevada  as  it  does  elsewhere.  There  is  no  rule  within  our 
knowledge  which  would  justify  a  court,  independent  of  any  com- 
mon-law principle,  in  holding  that  the  appellant  Haines  should 
not  have  the  benefits  of  a  stream  of  water  which  the  paramount 
proprietor  of  the  soil  grants  to  him  by  its  letters  patent.  It  might 
as  well  be  said  that  the  courts  can  deprive  him  of  the  land  it- 
self by  holding  that  it  did  not  pass  by  the  patent,  as  to  rule  sa 
respecting  that  which  is  universally  admitted  and  held  to  bean 
inseparable  and  valuable  incident  to  it.  But  perhaps  it  is  an  un- 
warranted conclusion  drawn  from  our  opinion  in  this  case, 
namely,  that  the  water  of  a  stream  could  not  be  used  by  the  ri- 
parian proprietor  for  irrigation,  which  is  thought  to  be  inappli- 
(2U; 


Ch.  7.]  RULE    IN    CALIFORXIA    AND    NEVADA.  §    119 

cable  to  the  condition  of  things  in  this  state.  To  this  it  may  be 
answered — First,  that  no  such  decision  has  been  made,  nor  has 
anything  of  the  kind  been  intimated;  second,  whatever  the  com- 
mon-law rule  may  be,  whether  applicable  or  not,  it  is  made  the 
law  of  this  state,  and  is  as  binding  on  us  as  is  any  statute  ever 
adopted  by  the  legislature;  and  therefore  we  have  no  more 
power  to  annul  or  repudiate  it  than  we  have  to  disregard  a  leg- 
islative act.  The  first  legislature  of  the  territory  of  Nevada  (see 
St.  1861,  p.  1)  declared  that  'the  common  law  of  England,  so 
far  as  it  is  not  repugnant  to  or  inconsistent  with  the  constitu- 
tion or  laws  of  the  United  States,  or  the  laws  of  the  territory  of 
Nevada,  shall  be  the  rule  of  decision  in  all  courts  of  this  terri- 
tory.' Our  state  constitution  adopted  this  by  section  2  of  the 
schedule.  Hence,  although  the  common  law  might,  in  the 
opinion  of  judges,  be  inapplicable,  still,  if  not  in  conflict  with 
the  constitution  or  laws  of  the  United  States,  or  the  constitution 
or  laws  of  Nevada,  it  must  nevertheless  be  enforced.  But  sup- 
pose that  decision  should  necessitate  the  adoption  of  the  com- 
mon law  respecting  the  manner  in  which  running  water  may  be 
used  by  those  having  the  right  to  it;  although  it  may  operate 
unjustly  in  some  cases,  still,  as  a  general  rule,  none  more  jxist  and 
reasonable  can  he  adopted  for  this  state.  It  is  a  rule  which  gives 
the  greatest  right  to  the  greatest  number,  authorizing  each  to 
make  a  reasonable  use  of  it,  providing  he  does  no  injury  to  the 
others  equally  entitled  to  it  with  himself;  while  the  rule  of  prior 
appropriation  would  authorize  the  first  person  who  might  choose 
to  make  use  of  or  divert  a  stream,  to  use  or  even  waste  the 
whole,  to  the  utter  ruin  of  others  who  might  wish  it.  The 
common  law  does  not,  as  seems  to  be  claimed,  deprive  all  of  the 
right  to  use,  but,  on  the  contrary,  allows  all  riparian  proprie- 
tors to  use  it  in  any  manner  not  incompatible  with  the  rights  of 
others.  When  it  is  said  that  a  proprietor  has  the  right  to  have  a 
stream  continue  through  his  land,  it  is  not  intended  to  be  said 

(215) 


§119  RULE    IN    CALIFORNIA  AND    NEVADA.  [Ch.  7. 

that  he  has  the  right  to  all  the  water,  for  that  would  render  the 
Btream  which  belongs  to  all  the  proprietors  of  no  use  to  any. 
What  is  meant  is  that  no  one  can  absolutely  divert  the  whole 
stream,  but  must  use  it  in  such  a  manner  as  not  to  injure  those  be- 
low him.  As  the  right  is  equal  in  each  owner  of  the  land,  be- 
cause naturally  each  owner  can  equally  enjoy  it,  so  one  must  exer- 
cise that  right  in  himself  without  disturbing  any  other  above  or 
below  in  his  natural  advantages.  Chief  Justice  Shaw  says:^  '  The 
right  of  flowing  water  is  now  well  settled  to  be  a  right  incident 
to  property  in  the  land;  it  is  a  right  'puhlici  juris,  of  such  a  char- 
acter that  while  it  is  common  and  equal  to  all  through  whose  land 
it  runs,  and  no  one  can  obstruct  or  divert  it,  yet,  as  one  of  the 
beneficial  gifts  of  Providence,  each  proprietor  has  a  right  to  a 
just  and  reasonable  use  of  it  as  it  passes  through  his  land;  and 
so  long  as  it  is  not  wholly  obstructed  or  diverted,  or  no  larger 
appropriation  of  the  water  running  through  it  is  made  than  a 
just  and  reasonable  use,  it  cannot  be  said  to  be  wrongful  or  in- 
jurious to  a  proprietor  lower  down,  whose  said  just  and  reason- 
able use  may  often  be  a  difficult  question,  dei^ending  on  various 
circumstances.  *  *  *  Ji  h^s  sometimes  been  made  a  ques- 
tion whether  a  rii^arian  proprietor  can  divert  water  from  a  run- 
ning stream  for  purposes  of  irrigation.  But  that  we  think  an 
abstract  question,  which  cannot  be  answered  either  in  the  af- 
firmative or  negative  as  a  rule  applicable  to  all  cases.  That  a 
portion  of  the  water  of  a  stream  may  be  used  for  the  purpose  of 
irrigating  land,  we  think  is  well  established  as  one  of  the  rights 
of  the  proprietor  of  the  soil  along  or  through  which  it  passes. 
Yet  a  proprietor  cannot,  under  color  of  that  right,  or  for  the  act- 
ual purpose  of  irrigating  his  own  land,  wholly  obstruct  or  di- 
vert the  water-course,  or  take  such  an  unreasonable  quantity  of 
water,  or  make  such  unreasonable  use  of  it,  as  to  deprive  other 
proprietors  of  the  substantial  benefits  which  they  might  derive 

1  Elliot  V.  Fitchburg  R.  R.,  10  Cush.  193. 
(216) 


Ch.  7.]  RULE   IN    CALIFOENIA    AND   NEVADA.  §    120 

from  it  if  not  diverted  or  used  unreasonably.'  This  is  the  doc- 
trine uniformly  recognized  both  in  England  and  in  the  United 
•States,  and  is  the  necessary  result  of  the  general  principles  uni- 
versally recognized  respecting  running  water.  Whether  the  right 
to  irrigate  land  can  in  this  state  be  considered  a  'natural  want,' 
is  a  point  in  nowise  involved  in  this  case,  and  which,  therefore, 
does  not  call  for  decision."  In  conclusion,  the  learned  judge 
shows  that  the  early  decisions  in  Nevada  and  a  series  of  cases  in 
California  liave  no  bearing  whatever  upon  the  questions  con- 
cerning riparian  rights,  since  they  related  exclusively  to  the  ap- 
propriation of  water  of  streams  wholly  public,  by  parties  who 
"were  not  riparian  proprietors.  It  has  already  been  shown  that 
the  California  courts  make  the  same  distinction.  As  throwing 
light  upon  the  discussion,  and  as  supporting  his  positions,  the 
chief  justice  cites  a  long  list  of  cases,  which  for  purposes  of  ref- 
erence I  have  thought  proper  to  place  in  the  foot-note.^ 

§  120.     Modifications  on  doctrine  of  Van  Sickle  v. 
Haines. 

The  decision  in  Van  Sickle  v.  Haines  is  subject  to  some  mod- 
ification, in  respect  to  one  of  its  conclusions,  by  the  legislation 
of  congress.  The  court  expressly  held  that  a  patent  granted  by 
the  United  States  to  a  private  person,  conveying  the  full  legal 
title  to  a  tract  of  what  had  been  public  land  situated  on  the 

1  Mason  v.  Hill,  3  Barn.  &  Adol.  Manuf  g  Co.,  30  K  H.  478;  Ingra- 

S05;  5  Barn.  &,  Adol.  1;  Sampson  ham  v.  Hutchinson,  2  Conn.  584; 

V.  Hoddinott,  1  C.  B.  (N.  S.)  611;  Parker  v.  Holchkiss,  25  Conn.  321; 

Embre}^  v.    Owen,   6    Exch.    353;  Wadsworth  v.  Tillotson,  15  Conn. 

Wright  V.   Howard,    1   Sim.  &  S.  366;  King  v.  Tiffany,  9  Conn.  162; 

190;  Davis  v.  Getchell,  50  Me.  602;  Elliot  v.  Fitchburg  R.  R.,  10  Cush. 

Heath  v.  Williams,  25  Me.  209;  Lick  191 ;  Tyler  v.  Wilkinson,  4  Mason, 

V.  Madden,  25  Cal.  209;  Blanchard  397;   Webb    v.  Portland   Manuf  g 

V.  Baker,  8  Greenl.  253;  Davis  v.  Co.,  3  Sum.  189;  Gardner  v.  Village 

Fuller,  12  Vt.  178;  Snow  V.  Parsons,  of  Newburgh,  2  Johns.  Ch.  163;  Ex 

28  Vt.  459;  Tillotson  v.  Smith,  32  parte  Jennings,  6  Cow.  518;  Canal 

N.  H.  90;  Gerrish  v.  New  Market  Appraisers   v.   People,   17  Wend. 

(217) 


§    120  RULE  IN    CALIFORNIA   AND   NEVADA.  [Ch.  7. 

bank  of  a  stream,  although  all  the  rest  of  the  land  on  its  banks 
was  still  public,  ipso  facto,  and  necessarily,  so  far  as  the  pat- 
entee's riparian  rights  to  the  stream  were  concerned,  cut  off  and 
annulled  all  rights  to  use_  the  waters  of  the  same  stream  as  a 
public  stream  acquired  by  prior  appropriation,  and  held  by 
parties  who  were  not  private  riparian  proprietors.  The  reasons 
for  the  conclusion  were  that  the  appropriation  of  the  waters  of 
streams  running  over  the  public  lands  was  wholly  permissive; 
the  right  of  the  appropriator  could  never  become  complete 
against  the  United  States  by  adverse  use,  but  it  was  a  new 
license  or  privilege,  subject  to  be  revoked  and  abrogated  at  any 
time  by  the  United  States;  and  that  a  patent,  by  which  the 
full  legal  title  of  the  United  States,  with  all  of  its  incidents,  was 
conveyed  to  the  patentee,  necessarily  clothed  such  patentee  with 
all  rights  over  the  land  which  had  belonged  to  the  United  States, 
and  conveyed  to  him  the  land  entirely  free  from  all  claims  to  the 
water  of  the  stream  growing  out  of  the  prior  appropriation  and 
uses.  On  principle,  and  in  the  absence  of  contrary  legislation, 
the  correctness  of  this  ruling  cannot  be  doubted.  It  has,  how- 
ever, been  modified  within  certain  limits  by  a  statute  of  con- 
gress referred  to  twice  in  a  previous  chapter.  This  statute  pro- 
vides, in  substance,  that  the  waters  of  public  streams  may  be 
appropriated,  under  local  customs  and  laws,  for  various  pur- 
poses connected  with  mining;  and  that,  when  such  appropria- 
tions have  been  made  from  the  waters  of  a  public  stream,  pat- 
ents subsequently  issued  by  the  United  States  to  private  persons 
shall  be  subject  to  the  rights  of  the  appropriator,  and  conditions 

570;  5  Wend.  423;  Rogers  V.Jones,  486;  40  N.   Y.   204;   Campbell    v. 

1  Wend.  237;  People  v.  Canal  Ap-  Smith,  3  Halst.  140;  Plumleigh  v. 

praisers,  13  Wend.  355;  Crooker  v.  Dawson,  1  Oilman,  544;  Pugh  v. 

Bragg,  10  Wend.   260;  Arnold  v.  Wheeler,  2  Dev.  &  B.  50;  Board  of 

Foot,12  Wend.  330;  Commissioners  Trustees  v.  Haven,  11  111.  554;  Mof- 

V.  Kempshall,  26  Wend.  404;  Corn-  fett  v.  Brewer,  1  Greene,  (Iowa,) 

ing  V.  Troy  Iron-Works,  34  Barb.  348. 
(218) 


Ch.  7.]  RULE   IN   CALIFORNIA   AND   NEVADA.  §    121 

reserving  or  protecting  such  existing  rights  shall  be  incorporated 
into  the  patent.'  The  result  is  that  when  the  waters  of  a  stream 
flowing  wholly  over  the  public  land  have  been  appropriated  for 
a  purpose  recognized  and  protected  by  the  statutes  of  congress, 
and  a  patent  is  subsequently  issued  by  the  United  States  to  a 
private  person  conveying  the  title  to  a  tract  of  land  on  the  banks- 
of  the  same  stream,  the  patentee  takes  his  title,  and  must  enjoy 
his  rights  as  a  riparian  proprietor  subject  and  subordinate  to  the 
already  existing  rights  of  the  prior  and  actual  appropriator.  On 
the  other  hand,  whenever  the  waters  of  a  stream,  flowing  wholly 
over  the  public  land,  have  not  been  appropriated  at  all  for  any 
purpose,  or  whenever  they  have  been  appropriated  for  a  pur- 
pose not  recognized  and  protected  by  the  congressional  legisla- 
tion, and  a  patent  is  issued  by  the  United  States  to  a  private 
person  conveying  a  tract  of  land  on  the  banks  of  the  same 
stream,  in  either  case  the  patentee  obtains,  as  incidents  of  his 
title,  the  full  and  complete  rights  of  a  private  riparian  proprietor 
on  the  stream.  His  title  to  the  extent  of  his  right  as  riparian 
proprietor  is  paramount  to  any  subsequent  appropriation  from 
the  stream  as  a  public  stream;  and  his  rights  in  the  stream  are  a& 
perfect  and  complete  when  he  is  the  sole  private  proprietor  on 
its  banks  as  when  all  the  lands  on  its  banks  are  held  by  private 
owners. 

§  121.     Legitimate  riparian  uses. 

Assuming,  as  has  been  shown,  that  the  "riparian  rights"  of 
private  "riparian  proprietors"  on  natural  running  streams  in 
this  state  of  California  are  expressly  excepted  from  the  opera- 
tion of  the  title  concerning  water-rights  in  the  Civil  Code,  are 
wholly  untouched  by  its  provisions,  and  are  left  existing  in 
every  respect  as  though  it  had  not  been  enacted,  we  are  now  in 
a  position  to  ascertain,  with  more  certainty  and  definiteness, 

iRev.  St.  U.  S.  §  2338. 

(219) 


§123  RULE   IN   CALIFORNIA    AND   NEVADA.  [Cll.  7. 

the  nature  and  extent  of  these  rights,  and  what  uses  of  the 
waters  they  confer  upon  or  withhold  from  the  "riparian  propri- 
etor." 

§  122.     California  decisions. 

The  series  of  decisions  heretofore  cited  show  most  conclusively 
that  all  of  the  fundamental  common-law  doctrines  concerning 
the  riparian  rights  of  private  riparian  proprietors,  which  were 
so  fully  and  ably  expounded  in  the  Nevada  case,  have  been 
adopted  by  the  California  court,  and  recognized  as  forming  a 
part  of  the  California  law.  While  the  reasons  for  these  doc- 
trines have  not  been  explained  at  such  length  in  the  California 
cases,  and  while  the  authorities  upon  which  they  rest  have  not 
been  so  exhaustively  quoted,  yet,  upon  a  comparison  of  the  va- 
rious decisions,  it  will  appear,  beyond  a  possibility  of  a  doubt, 
that  all  of  the  essential  and  important  doctrines  of  the  common 
law,  as  discussed  and  formulated  by  the  Nevada  court  in  the 
case  of  Van  Sickle  v.  Haines,  have  been  accepted  and  affirmed 
by  the  supreme  court  of  California  in  repeated  decisions.  To 
present  this  conclusion  in  the  clearest  light,  I  give,  even  at  the 
expense  of  repeating  what  has  already  been  said,  a  brief  sum- 
mary of  those  decisions. 

§  123.     Natural  uses. 

It  is  held  that  the  right  of  the  private  riparian  proprietor  is 
an  incident  of  his  ownership  of  land  on  the  bank  of  the  stream, 
and  exists  as  a  necessary  consequence  of  such  ownership,  and 
does  not  in  the  slightest  depend  upon  the  fact  of  an  actual  ap- 
propriation of  the  water  having  been  made  by  himself  or  by  any 
other  riparian  proprietor  on  the  same  stream.^  The  right  to  the 
water  is  not  an  absolute  property  in  all  the  water,  authorizing 

iPope  T.  Kinman,  54  Cal.  3;  Creightou  v.  Evans,  53  Cal.  55;  Ferrea  v. 
Knipe,  28  Cal.  341. 

(220) 


Ch.  7.]  RULE    IN    CALIFORNIA    AND   NEVADA.  §    124 

any  riparian  j^roprietor  to  consume  it  entirely;  it  is  a  right  that 
the  stream  should  continue  to  flow  along  in  its  natural  channel 
as  it  has  been  accustomed  to  flow,  and  give  the  riparian  propri- 
etor the  usufruct  of  the  water  as  it  passes  along  his  land  border- 
ing on  the  stream;  and  this  right  belongs  equally  to  all  the  pri- 
vate proprietors  on  the  banks  of  the  same  stream,  subject  only 
to  the  advantage  which  position  gives  to  those  higher  up  the 
stream  over  proj)rietors  lower  down.^  The  law  recognizes  cer- 
tain natural  uses  which  are  paramount  to  all  others,  and  these 
include  the  use  of  water  for  household  and  domestic  purposes, 
washing,  drinking,  cooking,  etc.,  and  its  uses  for  watering  stock. 
It  may  be  doubted  whether  these  "natural  uses"  embrace  any- 
thing more  than  these  two  purposes.  From  these  paramount 
natural  uses  originates  the  only  advantage  which  the  common 
law  gives  to  one  riparian  proprietor  over  another  or  others  on 
account  of  his  relatively  superior  position.  A  proprietor  higher 
up  on  the  stream  may  use  as  much  of  the  water  as  is  reason- 
ably necessary  for  his  own  domestic  and  household  purposes, 
and  for  the  watering  of  his  own  stock,  even  though  the  amount 
left  flowing  down  the  stream  is  thereby  so  much  diminished 
that  there  is  not  enough  left  to  supply  the  needs  of  the  lower 
proprietor  or  proprietors  for  the  same  purposes.  But  the  use 
for  these  purposes  by  a  proprietor  higher  up  the  stream  must 
be  reasonable  in  amount,  and  reasonable  in  its  methods  and  in- 
strumentalities.^ 

§  124.     Secondary  uses. 

In  addition  to  these  natural  and  paramount  uses,  which  nec- 
essarily consume  the  portion  of  water  used,  each  riparian  pro- 
prietor, by  virtue  of  his  usufruct,  may  use  the  water  of  the  stream, 

lid.  543;  Stein  v.  Burden,  29  Ala.  137; 

2Id.   See  Ferrea  V.  Knipe,  supra.      Shook  v.  Colohan,  12  Or.  239,  s.  c. 
And  see  Slack  v.  Marsh,  11  Phila.      6  Pac.  Rep.  503. 

(221) 


§    125  RULE    IN    CALIFORNIA    AND   NEVADA.  [Ch.  7. 

as  it  passes  along  by  or  through  his  land,  for  any  other  lawful 
purpose,  provided  he  returns  all  of  the  water,  undiminished  in 
amount  and  undeteriorated  in  quality,  into  the  natural  chan- 
nel of  the  stream  before  it  leaves  his  own  land  and  enters  upon 
that  of  the  adjacent  proprietor  below  him,  and  provided,  also, 
he  does  not  thereby  interfere  with  the  similar  and  equal  right 
of  the  proprietor  upon  the  immediately  opposite  bank  of  the 
stream,  where  his  own  land  abuts  upon  only  one  bank, — that  is, 
when  the  stream  does  not  flow  through  his  own  land.  In  this 
manner  any  riparian  owner  may  use  the  water  of  a  stream  for 
propelling  macliinery  on  his  own  land,  provided  he  returns  all 
the  water  into  the  natural  channel  before  it  leaves  his  own  land, 
and  does  not  impair  its  quality;  and  to  this  end  he  may  con- 
struct a  dam  in  the  stream  upon  his  own  land,  provided  he 
does  not  interfere  with  the  land  of  proprietors  above  him  by  the 
backwater,  and  does  not  invade  the  rights  of  a  proprietor  im- 
mediately opposite  to  himself  on  the  other  bank  of  the  stream. 
These  rights  are  conferred  by  the  common  law  upon  all  of  the 
proprietors  owning  lands  upon  the  same  stream.  Any  propri- 
etor may,  of  course,  obtain  more  extensive  rights  by  grant  from 
others,  or  by  prescription.  How  far  the  right  of  the  riparian 
proprietor  includes  the  right  to  use  and  consume  the  water  for 
purposes  of  irrigation,  remains  to  be  considered. 

§  126.     Reasonable  riparian  use. 

[The  rule  that  every  riparian  proi:)rietor  has  an  equal  right  to 
the  use  of  the  water  as  it  is  accustomed  to  flow,  without  diminu- 
tion or  alteration,  is  subject  to  a  well-recognized  limitation,  viz., 
that  each  owner  may  make  a  reasonable  use  of  the  water  for  do- 
mestic, agricultural,  and  manufacturing  purposes.^     But  here 

lEmbrey  v.  Owen,  6  Exch.  352;  4  Mason,  397;  Union  Mill  Co.  v. 

Nuttall  V.  Bracewell,,L.  R.  2  Exch.  Ferris,   2    Sawy.   176;    Gerrish  v. 

1;  Miner  v.  Gilmour,  12  Moore,  P.  New  Market  Manuf  g  Co.,  30  N.  H. 

C.  131,  156;  Tyler  v.   Wilkinson,  478;  Tillotsou  v.  Smith,  32  N.  H. 

(222) 


Ch.  7.] 


EULE   IN    CALIFORNIA   AND   NEVADA. 


§  125 


it  is  necessary  to  note  an  important  distinction  between  primary 
and  secondary,  or  natural  and  artificial,  wants;  for,  to  supply 
his  natural  wants,  as  for  household  purposes,  for  quenching 
thirst,  and  for  his  cattle,  a  riparian  proprietor  may  consume  the 
entire  stream  if  necessary;  but  for  artificial  wants,  as  for  irrigat- 
ing his  land  or  propelling  his  machinery,  he  is  only  entitled  to 
a  reasonable  use.^ 


90;  Norwaj'^  Plains  Co.  v,  Brad- 
ley, 52  N.  H.  86;  Holden  v.  Lake 
Co.,53N.H.  552;  Snow  v.  Parsons, 

28  Vt.  459;  Barrett  v.  Parsons,  10 
Cush.  367;  Elliot  v.  Fitchburg  R. 
R.,  Id.  191;  Gary  V.Daniels,  8  Mete. 
466;  Pitts  v.  Lancaster  Mills,  13 
Mete.  156;  Thurber  v.  Martin,  2 
Gray,  394;  Tourtellot  v.  Phelps,  4 
Gray,  370;  Chandler  v.  Rowland, 
7  Gray,  348;  Wood  v.  Edes,  2  Al- 
len, 578;  Twiss  v.  Baldwin,  9  Conn. 
291;  Wadsworth  v.  Tillotson,  15 
Conn.  3(56;  Agawam  Canal  Co.  v. 
Edwards,  36  Conn.  476;  Merritt  v. 
Brinkerhoff,  17  Johns.  306;  Clin- 
ton V.  Myers,  46  N.  Y.  511;  Ac- 
quackanonk  Water  Co.  v.  Watson, 

29  N.  J.  Eq.  366;  Farrell  v.  Rich- 
ards, 30  N.  J.  Eq.  511;  Williamson 
V.  Canal  Co.,  78  N.  C.  156;  McElroy 
V.  Goble,  6  Ohio  St.  187;  State  v. 
Pottmeyer,  33  Ind.  402;  Evans  v. 
Merriweather,  3  Scam.  492;  Plum- 
leigh  V.  Dawson,  1  Gilman,  544; 
Batavia  Manuf'g  Co.  v.  Newton 
Wagon  Co.,  91  111.  230;  Dumont  v. 
Kellogg,  29  Mich.  420;  Hazeltine 
V.  Case,  46  Wis.  391,  s.  c.  1  N.  W. 
Rep.  66;  Swift  v.  Goodrich,  11 
Pac.  Rep.  561;  3  Kent,  Comm.  *440; 
Ang.  Water-Courses,  §  95;  Washb. 
Easem.*216;  Gould,  Waters,  §  205. 

In  2  Washb.  Real  Prop.  (4th  Ed.) 
348,  it  is  said:  "There  are  sundry 
uses  which  each  successive  owner 
along    the  stream  may  exercise. 


though  by  so  doing  he  impairs  to 
some  extent  the  enjoyment  by  oth- 
ers of  the  full  flow  of  the  water, 
provided  it  be  done  in  a  reasonable 
manner,  and  not  so  as  thereby  to 
destroy  or  materially  diminish  the 
supply  of  the  water,  or  render  use- 
less its  application  by  the  other  ri- 
parian proprietors,  either  by  the 
quantity  consumed  or  by  corrupt- 
ing its  quality,  by  throwing  it  back 
upon  the  lands  of  others  above,  or 
diverting  and  stopping  its  flow  so 
as  to  affect  such  lands  below  his 
own  premises.  Each  case  must 
depend  upon  its  own  circumstan- 
ces; but  among  the  uses  to  which 
a  riparian  proprietor  may  be  said 
to  have  a  natural  right  to  apply 
the  waters  of  a  stream,  to  the  ex- 
tent already  indicated,  are  such 
agricultural  and  domestic  pur- 
poses as  irrigating  his  land,  water- 
ing his  cattle,  and  the  like;"  citing 
Mason  v.  Hill,  5  Barn.  &  Adol.  1 
Wood  v.  Waud.  3  Exch.  748,  775 
Embrey  v.  Owen,  6  Exch.  353 
Webb  v.  Portland  Co.,  3  Sum.  189 
Sampson  v.  Hoddinott,  1  C.  B,  (N. 
S.)  590. 

1  Evans  v.  Merriweather,  3  Scam. 
492;  Stein  v.  Burden,  29  Ala.  127; 
Slack  V.  Marsh,  11  Phila.  543;  Ba- 
ker V.  Brown,  55  Tex.  377;  Rhodes 
V.  Whitehead,  27  Tex.  314;  Flem- 
ing V.  Davis,  37  Tex.  173. 

(223) 


§   125  RULE    IN    CALIFORNIA   AND   NEVADA.  [Ch.  ?► 

The  question,  what  is  a  reasonable  use?  depends  upon  a  number 
of  circumstances;  upon  the  subject-matter  of  the  use  itself,  the 
size  of  the  stream,  the  velocity  of  the  current,  the  nature  of  the 
banks,  the  diameter  of  the  soil,  and  a  variety  of  other  facts.* 
"What  constitutes  reasonable  use,"  says  the  court  in  Wisconsin, 
"depends  upon  the  circumstances  of  each  particular  case;  and 
no  positive  rule  of  law  can  be  laid  down  to  define  and  regulate 
such  use  with  entire  precision,  is  the  language  of  all  the  author- 
ities upon  the  subject.  In  determining  this  question,  regard 
must  be  had  to  the  subject-matter  of  the  use,  the  occasion  and 
manner  of  its  application,  its  object,  extent,  and  the  necessity 
for  it,  to  the  previous  usage,  and  to  the  nature  and  condition  of 
the  improvements  upon  the  stream:  and  so,  also,  the  size  of  the 
stream,  the  fall  of  water,  its  volume,  velocity,  and  prospective 
rise  and  fall,  are  important  elements  to  be  considered.''^  And 
the  question  of  the  reasonableness  of  the  use  of  a  stream,  whea 
it  is  not  settled  by  custom  and  is  in  its  nature  doubtful,  should 
always  be  regarded  as  one  of  fact,  to  be  determined  by  the  tri- 
bunal trying  the  facts. ^  We  may  add  that  the  mode  and  extent 
to  which  a  riparian  owner  may  use  and  apply  the  waters  of  a 
stream,  as  between  him  and  another  riparian  proprietor,  is  not 
measured  by  what  would  be  reasonably  requisite  for  his  partic- 
ular business,  but  what  is  reasonable,  having  reference  to  the 
rights  of  tlie  other  proprietors  in  the  stream,  without,  by  such 
use,  materially  diminishing  its  quantity  or  deteriorating  its  qual- 
ity.* And  even  where  a  party  has  a  right  to  the  use  of  a  water- 
course according  to  his  convenience  and  judgment,  and  all  the 

1  Union    Mills    Co.  v.    Ferris,  2  ^gnow  v.  Parsons,  28  Vt.  459. 

Sawy.    176;   Dilling  v.   Murray,  6  ^BataviaManuf  gCo.  v.  Newton 

Ind.  324;  Mayor  of  Baltimore  v.  Wagon  Co.,  91  111.  246;  Union  Mill 

Appold,42Md.442;  Elliot  v.  Fitch-  &  M.  Co.  v.  Ferris,  2  Sawy.  196; 

burg  R.  R.,  10  Cush.  191;  Thurber  Wheatley  v.  Chrisman,  24  Pa.  St. 

V.  Martin,  2  Gray,  394;  Timm  v.  298;  Pennsylvania  R.  R.  v.  Miller, 

Bear,  29  Wis.  254.  112  Pa.  St.  34,  s.  c.  3  Atl.  Rep.  780. 

2 Timm  v.  Bear,  29  Wis.  254. 

(224) 


Ch.  7.]  RULE   IN    CALIFORNIA    AND    NEVADA.  §    126 

right  which  prescription  can  confer,  still  he  can  exercise  that 
right  only  in  a  reasonable  manner;  and  therefore  if  he  uses  the 
water  not  for  his  own  benefit  and  convenience,  but  maliciously 
or  wantonly,  to  the  prejudice  of  another,  he  is  liable  in  dam- 
ages.^ Finally,  it  is  only  between  riparian  proprietors  that  the 
question  as  to  the  reasonable  use  of  the  water  can  ever  arise. ^] 

§  126.     Reasonable  use  for  manufactures. 

[In  regard  to  the  use  of  the  water  for  mechanical  or  manufact- 
uring purposes,  the  rule  is  thus  stated:  "Each  proprietor  of 
land  through  which  a  natural  water-course  flows  has  a  right,  as 
owner  of  such  land,  and  as  inseparably  connected  with  and  in- 
cident to  it,  to  the  natural  flow  of  the  stream,  for  any  hydraulic 
purpose  to  which  he  may  think  fit  to  apply  it;  and  it  is  a  nec- 
essary consequence  from  this  principle  that  such  proprietor  can- 
not be  held  responsible  for  any  injurious  consequences  which 
result  to  others,  if  the  water  is  used  in  a  reasonable  manner,  and 
the  quantity  used  is  limited  by,  and  does  not  exceed,  what  is 
reasonably  and  necessarily  required  for  the  operation  and  pro- 
pulsion of  works  of  such  character  and  magnitude  as  are  adapted 
and  appropriate  to  the  size  and  capacity  of  the  stream,  and  the 
quantity  of  water  usually  flowing  therein."^  But  as  a  ripariaa 
owner  cannot,  by  prior  appropriation,  acquire  the  right  to  di- 
vert the  water-course  as  against  a  lower  proprietor,  so  he  cannot 
by  such  priority  acquire  a  right  to  consume  the  entire  stream 


^Twiss  V.  Baldwin,  9  Conn.  291.  etor,  for  manufacturing  purposes, 

2 Lux  V.   Haggin,   (Cal.)  4  Pac.  without  restoring  to  the  channel 

Rep.  925.  the  excess  of  water  not  actually 

^Springfield  v.  Harris,  4  Allen,  consumed,  is  an  unreasonable  ex- 

494,  Merricli,  J.     And  see  Davis  v.  ercise  of  the  right  to  use  the  water 

Getchell,  50  Me.  602.     But  the  di-  of  the  stream.     Weiss  v.  Oregom 

version  of  a  water-course,  or  a  part  Iron  &  Steel  Co.,  13  Or.  496,  s.  a 

of  it,  by  an  upper  riparian  propri-  11  Pac.  Rep.  255. 

POM.RIP. — 15  (225) 


§127  RULE  IN   CALIFORNIA    AND   NEVADA.  [Ch.  7. 

for  mechanical  purposes,  as  by  converting  it  into  steam. ^  The 
question  whether  the  use  of  a  stream  to  carry  ofi'  nianufocturer's 
waste  is  reasonable  or  not,  is  one  of  fact  for  the  jury,  depending 
upon  the  circumstances  of  the  case,  such  as  the  size  and  char- 
acter of  the  stream,  the  purpose  of  its  use,  the  benetit  to  the 
manufacturer,  and  the  injury  to  the  other  riparian  owners.^] 

§  127.     Manner  of  use  must  be  reasonable. 

[The  maxim,  sic  utere  tuo  ut  aHenum  non  laedas.  emphatically 
applies  to  riparian  proprietors.^  For  example,  a  riparian  pro- 
prietor, in  using  the  water  of  a  stream  for  domestic  purposes  and 
watering  cattle,  has  no  right  to  so  dam  it  up  as  to  spread  it  over 
a  large  surface,  whereby  it  becomes  lost  by  evaporation  and  ab- 
sorption to  an  extent  to  prevent  the  stream  from  flowing  through 
the  land  of  the  next  proprietor,  as  it  would  do  but  for  such 
dam.*  But  a  riparian  owner  may  dam  the  stream  in  order  to 
make  a  pond  for  ice,  and  he  may  drain  such  pond,  and  hold 
back  the  water  until  he  shall  have  cleaned  out  the  pond  in  order 
that  the  ice  may  be  pure.  Those  below  cannot  complain  of  such 
use.'] 

1  Bliss  V.  Kennedy,  43  111.  67.  In  "to  perceptibly  reduce  the  volume 
Garwood  v.  Railroad,  83  N.  Y.  400,  of  water  therein,  "  and  to  "mate- 
plaintiff  was  the  owner  of  a  mill  rially  reduce  or  diminish  the  grind- 
operated  by  water-power  fur-  ing  power  of  plaintiff's  mill,"  and 
nished  by  a  creek.  Defendant,  (a  that  in  consequence  he  had  sus- 
railroad  corporation,)  who  was  a  tained  damage  to  a  substantial 
riparian  owner  above,  under  a  amount.  Held,  that  plaintiff  might 
claim  of  right,  diverted  the  waters  recover  the  damages  sustained, 
of  the  creek,  conveying  them  by  and  have  the  diversion  enjoined, 
pipes  to  reservoirs,  whence  its  lo-  ^jjayes  v.  Waldron,  44  N.  H.  580. 
comotives  were  supplied  with  wa-  suur^en  y.  Hobson,  12  Grat. 
ler.     The  jury  found,  on  sufficient  323. 

evidence,  that  the  water  so  divert-  ^Ferrea  v.  Knipe,  28  Cal.  340. 

ed  from  the  creek  was  sufficient  ^De  Baun  v.  Bean,  29  Hun,  236. 
(226) 


Ch.  8.]  IRRIGATION.  §   128 

CHAPTER  VIII. 

USE  OF  WATERS  FOR  IRRIGATIOJ?". 

§  138.  Irrigation  of  riparian  lands — Ellis  v.  Tone. 

129.  Limited  authority  of  foregoing  decision. 

130.  Tendency  of  decision  in  Ellis  v.  Tone. 

131.  The  question  as  to  irrigation  stated. 
133.  No  right  to  irrigate  non-riparian  lands. 

133.  Prior  appropriation  gives  no  exclusive  right. 

134.  Relative  equality  of  riparian  owners. 

135.  Size  of  stream. 

136.  Reasonable  use  for  irrigation. 

137.  Easements  and  adverse  user. 

138.  Relation  of  irrigation  to  the  natural  wants. 

139.  Summary  of  principles. 

140.  Irrigation — The  English  authorities. 

141.  French  law. 

143.     Review  of  the  American  authorities. 

143.  Review  of  authorities  continued — The  Pacific  cases. 

144.  Surplus  water  must  be  restored. 

§  128.     Irrigation  of  riparian  lands — Ellis  v.  Tone. 

We  are  now  brought  to  the  question,  how  far  do  the  riparian 
rights  of  a  private  riparian  proprietor,  under  the  law  of  California 
and  of  Nevada,  include  the  right  to  use  the  water  of  the  stream 
for  the  purpose  of  irrigating  his  land?  The  only  recent  decision 
which  deals  directly  with  this  question  to  any  extent,  or  in  any 
manner,  is  found  in  the  case  of  Ellis  v.  Tone,^  decided  in  1881. 
Unfortunately  this  case  is  so  reported  that  it  does  not  throw 
much  light  upon  the  general  question.  The  action  was  tried 
"before  a  jury,  but  the  report  does  not  give  the  entire  charge  of 
the  court,  so  that  it  may  be  seen  upon  what  general  theory  of  the 
law,  or  upon  what  admitted  doctrine,  the  cause  was  tried  and 
the  recovery  had.     Certain  detached  clauses  of  the  charge  were 

158  Cal.  28af 

(227) 


§128  IRRIGATION.  [Ch.  8. 

excepted  to,  and  certain  special  instructions  were  refused,  and 
these  alone  have  been  given  by  the  reporter. 

The  opinion  of  the  court  is  also  confined  to  an  examination 
of  the  specific  exceptions,  and  does  not  enter  into  any  discus- 
sion of  the  general  doctrines  upon  which  the  case,  as  a  whole, 
must  have  rested.  The  case,  however,  is  the  most  recent  pub- 
lished decision  which  deals  with  the  right  to  use  water  for  pur- 
poses of  irrigation,  and  we  shall  state  it  in  substance,  by  way 
of  introduction  to  the  discussion  of  this  most  important  ques- 
tion. 

The  action  was  brought  to  recover  from  defendants  damages 
for  diverting  water  from  Mormon  slough,  a  natural  water-course, 
by  which  plaintiffs  were  prevented  from  irrigating  their  growing 
crops  in  1877.  A  verdict  was  rendered  in  favor  of  the  plain- 
tiffs. Defendants  moved  for  a  new  trial,  which  was  denied,  and 
they  appealed.  The  facts,  as  stated  in  the  report,  were  as  fol- 
lows: Mormon  slough  or  channel  heads  from  and  runs  out  of 
the  Calaveras  river  east  of  Stockton,  and  about  four  miles  north- 
easterly from  plaintiffs' land,  and  flows  thence  in  a  south-westerly 
direction  to  the  Stockton  channel,  a  distance  of  about  twenty 
miles.  The  slough  runs  through  the  land  of  the  plaintiffs  in 
two  channels.  The  defendants  own  land  on  the  Calaveras  river, 
below  the  point  where  the  Mormon  slough  runs  out  of  that  river. 
The  slough  is  a  natural  water-course,  having  a  well-defined  chan- 
nel and  banks.  In  1850,  before  the  channel  of  the  Calaveras 
river  was  filled  in  by  mining  debris,  it  (the  lower  channel  of  said 
river)  was  from  four  to  six  feet  lower  than  the  bed  of  the  slough, 
so  that  the  waters  of  the  river  did  not  flow  into  the  slough  mitil 
the  waters  of  the  river  had  risen  from  four  to  six  feet.  But  the 
channel  of  the  river  has  since  been  so  filled  up  by  debris  that, 
when  the  water  is  low,  most  or  nearly  all  of  it  runs  and  has  run 
into  and  through  the  slough .  That  has  been  the  case  since  1862, 
unless  prevented  by  artificial  means,  so  that  in  dry  seasons,  or 
(228) 


Ch.  8.]  IRRIGATIOxN.  §    128 

in  the  dry  season  of  the  year,  nearly  all  of  the  water  ran  into 
the  slough;  and  during  the  whole  of  the  year  water  was  in  the 
slough,  while  "in  the  dry  season  little  or  none  ran  in  the  river 
below  the  head  of  the  slough.  In  the  fall  of  1876  and  winter 
of  1877  plaintiffs  put  in  a  crop  of  wheat  and  barley  on  their 
land,  through  which  the  slough  ran  as  above  stated.  The  plain- 
tiffs made  arrangements  to  irrigate  this  land  in  the  next  spring 
(of  1877)  by  damming  the  north  channel  of  the  slough,  so  as  to 
make  the  water  flow  into  the  south  channel,  on  the  banks  of 
which  their  crop  was  growing.  This  arrangement  was  completed 
in  April,  1877.  They  then  found  that  defendants  had  stopped 
the  entrance  .of  the  slough  by  digging  a  ditch  in  the  bed  of  the 
river,  and  by  damming  the  exit  of  the  slough  from  the  river,  so 
that  the  water  was  compelled  to  flow  down  the  river,  instead  of 
flowing,  as  had  been  the  case  for  fifteen  years,  into  the  slough. 
In  consequence  of  this  the  water  was  cut  off  from  the  slough, 
the  plaintiffs  were  unable  to  irrigate,  and  their  crop  was  a  fail- 
ure. Evidence  also  showed  that  in  the  spring  of  1877  the  de- 
fendants had  purchased  from  the  Mokelumne  Canal  Company 
four  hundred  miner's  inches  of  water,  to  be  furnished  between 
April  15th  and  the  first  of  June.  This  water  was  taken  from 
the  Mokelumne  river,  and  was  turned  into  the  Calaveras  river 
.at  a  point  above  the  head  of  the  Mormon  slough,  and  flowed 
down  that  river  to  the  lands  of  the  defendants,  so  that  they 
<;ould  use  it  for  purposes  of  irrigation. 

The  court  held  that  there  was  evidence  sufficient  to  sustain 
the  verdict  for  the  plaintiff.  The  trial  court  charged  the  jury 
as  follows:  "This  is  an  action  brought  by  the  plaintiffs  against 
these  defendants,  wherein  the  plaintiffs  allege  themselves  to  be 
the  owners  of  certain  lands  described  in  their  complaint,  and  al- 
lege that  the  Mormon  slough  was  a  natural  stream  of  water  flow- 
ing through  their  lands.  If  you  believe  from  the  evidence  that 
the  Mormon  slough  was  a  natural  stream  of  water,  and  that  the 

('229) 


§   128  IRRIGATION.  [Ch.  8. 

water  would  have  flowed  througli  their  lands  hut  for  the  diver- 
sion of  the  natural  flow  of  that  water  by  the  defendants,  the 
plaintifls  are  entitled  to  a  verdict  for  whatever  damages  they 
may  have  sustained  to  their  crops,  provided  they  were  prepared 
to  use  tiie  water,  and  had  niade  the  necessary  preparations  as 
they  have  alleged  in  their  coini)laint.  The  measure  of  damages 
in  this  case  is  the  amount  of  injury  to  the  crops  described  in 
the  complaint  by  the  act  of  the  defendants  in  diverting  the  nat- 
ural flow  of  the  water,  if  they  did  divert  it.  If,  however,  the 
plaintiffs  received  no  damage  by  any  act  of  the  defendants,  or 
they  did  not  divert  the  natural  waters  of  this  stream  to  the  in- 
jury of  the  plaintiffs,  then  your  verdict  will  be  for  the  defend- 
ants." To  this  paragraph  the  defendants  excepted;  and  objected 
on  the  appeal  that  it  assumed  the  fact  of  diversion;  that  it  in  ef- 
fect directed  the  jury  to  find  a  verdict  for  damages  to  plaintiffs* 
crops,  no  matter  from  what  cause  the  damages  originated;  and 
that  it  did  not  give  the  correct  rule  of  damages.  The  supreme 
court  held  that  these  objections  were  without  any  foundation; 
that  the  instruction  did  leave  the  question  to  the  jury  whether 
defendants  had  or  had  not  diverted  the  water;  and  that  the  trial 
court  was  not  bound  of  his  own  motion  to  state  any  rule  of  dam- 
age to  the  jury,  but  the  defendants  must  request  him  to  lay  down 
such  rule  as  they  claimed  to  be  the  true  one,  and,  if  he  re- 
fused, then  they  could  except  to  his  refusal. 

The  defendants  requested  the  trial  court  to  give  the  following 
instruction,  which  the  judge  refused  to  give:  "A  riparian  pro- 
})rietor,  who  takes  water  from  a  channel  in  which  it  naturally 
flows,  has  no  legal  right  to  take  it  beyond  his  own  land  before 
returning  it  to  its  natural  channel.  So,  if  the  jury  believe  from 
the  evidence  that  the  natural  waters  of  the  Calaveras  river  and 
Mormon  channel  would  have  flowed  in  the  main  Mormon  chan- 
nel (i.  e.,  the  north  channel  which  plaintiffs  dammed  up)  after 
plaintiff's  had  built  their  dams,  unless  diverted  by  said  dams  or 
(230) 


Ch.  8.]  .    IRRIGATION.  §    128 

other  means;  and  if  the  jury  further  believe  from  the  evidence 
that  plaintiffs'  dam  in  the  main  channel  (i.  e.,  the  north  chan- 
nel) of  Mormon  slough  was  not  built  on  their  own  land  for  pur- 
poses of  irrigation,  but  on  the  land  of  one  Murphy,  whose  lands 
did  not  adjoin  the  land  of  plaintiffs;  and  unless  the  jury  believe 
from  the  evidence  that  the  proprietors  of  intermediate  lands 
consented  to  the  diversion  of  said  natural  water  from  the  main 
(north)  channel  of  the  Mormon  slough,  by  a  dam  placed  therein 
by  plaintiffs,  (and  such  consent  should  be  shown  by  the  evi- 
dence,)— then  the  jury  should  find  for  the  defendants."  The  de- 
fendants having  excepted  to  the  trial  judge's  refusal  to  give  this 
instruction,  claimed  on  the  appeal  that  this  refusal  was  error. 
The  supreme  court  say:  "It  is  urged  that  in  this  there  was  er- 
ror, because  plaintiffs  did  not  show  the  consent  of  the  interme- 
diate owners  of  land  referred  to  in  the  request.  As  to  this,  it 
is  only  necessary  to  say  that  no  intermediate  land-owner  is  here 
objecting  to  plaintiffs'  bringing  the  water  through  their  lands.  As 
the}'  made  no  objection,  we  cannot  see  that  the  defendants  could 
make  the  objection  for  them,  or  either  of  them.  No  objection 
appearing,  it  is  proper  to  conclude  that  no  one  of  such  owners 
ever  objected." 

The  defendants  also  requested  the  trial  court  to  instruct  the 
jury  as  follows:  "The  plaintiffs  are  not  in  any  event  entitled  to  re- 
cover damages  for  the  diverting  from  Mormon  channel  any  waters 
which  were  not  the  natural  waters  of  the  Calaveras  river,  nor  for 
the  diverting  of  any  waters  in  excess  of  plaintiffs'  just  and  fair 
proportion  of  the  natural  waters  of  the  Calaveras  river  and  Mor- 
mon slough.  If  the  jury  believe  from  the  evidence  that  the  de- 
fendants caused  to  be  turned  in  and  run  down  the  Calaveras 
river,  above  Mormon  slough,  prior  to  the  erection  of  plaintiffs' 
dam,  and  until  the  first  of  June,  1877,  waters  taken  from  the 
Mokelumne  river;  and  if  the  jury  further  believe  from  the  evi- 
dence that  the  natural  waters  of  the  Calaveras  river  did  not 

(231) 


§128  IRRIGATION,  [Ch.  8. 

run  clown  the  river  to  the  head  of  Mormon  slough  in  sufficient 
quantity  to  irrigate  phiintiffs'  land  in  the  spring  of  1877,  and 
after  plaintiffs  had  constructed  their  dams, — then  the  jury  should 
find  for  the  defendants."  The  court  refused  to  give  these  in- 
structions, and  the  defendants  excepted.  In  regard  to  these  ex- 
•ceptions  the  supreme  court  said:  "The  court  did,  in  effect, 
tharge  all  these  propositions  in  giving  the  following  requests 
asked  by  defendants:  'Third.  In  no  event  were  the  plaintiffs 
entitled  to  the  use  as  riparian  proprietors  of  any  water  expept 
the  water  which  would  naturally  flow  down  the  Calaveras  river 
and  the  Mormon  slough;  and  if  the  jury  believe  from  the  evi- 
dence that  any  water  was  turned  into  the  Calaveras  river  above 
the  head  of  the  Mormon  slough,  at  the  request  of  the  defendants, 
©r  any  of  them,  from  ditches  which  drew  their  water  from 
Mokelumne  river,  then  the  plaintiffs  cannot  recover  any  damages 
for  being  deprived  of  the  use  of  the  water  which  was  so  turned 
into  the  Calaveras  river.  Fourth.  The  plaintiffs  had  not  the 
legal  right  to  use  for  the  purpose  of  irrigation  all  of  the  natural 
waters  of  the  Calaveras  river  which  flowed  down  the  Calaveras 
river  and  Mormon  slough.  The  other  riparian  proprietors  of 
land  on  the  Mormon  slough  had  a  legal  right  to  use  such  natu- 
ral waters  equally  with  plaintiffs.  The  plaintiffs  had  no  legal 
exclusive  right  to  use  such  natural  waters  for  the  purpose  of 
irrigation  in  excess  of  their  just  and  fair  proportion  thereof. 
Ninth.  If  the  jury  believe  from  the  evidence  that  the  defendants, 
»r  any  of  them,  caused  to  be  turned  into  the  Calaveras  river, 
above  the  head  of  Mormon  slough,  waters  taken  from  the  Moke- 
lumne river,  and  such  waters  continued  to  flow  down  the 
Calaveras  river  from  the  middle  of  April  until  the  first  of  June, 
1877,  then  the  plaintiffs  cannot  recover  because  the  defendants 
prevented  them  from  using  such  waters.'" 

With  respect  to  other  exceptions  and  objections  by  the  defend- 
ants, the  supreme  court  further  said:   "An  exception  was  re- 
(232) ' 


€h.  8.]  IRRIGATION.  §    128 

served  to  the  following  instruction  asked  by  the  plaintiff's: 
'  Every  riparian  owner  upon  a  stream  has  a  right  to  use,  in  a 
reasonable  way,  the  water  of  said  stream  for  domestic  purposes, 
for  the  irrigation  of  his  land,  or  for  propelling  machiner}'^,  if  the 
quantity  of  water  will  warrant  such  use  above  the  amount  re- 
quired for  domestic  purposes.'  As  to  this,  the  counsel  for  de- 
fendants said:  'The  plaintiffs  were  entitled  to  the  reasonable 
use  of  the  natural  waters  of  the  Mormon  slough.  By  reasonable 
use  is  meant  reasonable  quantity  as  well  as  reasonableness  in  the 
manner  of  its  use.  The  vice  of  the  instruction  is  that  the  right  to 
use  the  water  is  qualified  by  the  reasonable  manner  of  its  use,  and 
not  by  an. unreasonableness  in  respect  to  the  quantity  used.'  In 
our  judgment,  the  criticism  of  the  learned  counsel  is  not  war- 
ranted. It  savors  of  hypercriticism.  The  instruction  as  given 
•embraced  quantity  as  well  fis  manner.  We  do  not  see  that  any 
injury  was  done  to  the  defendants  in  giving  the  instruction  eight, 
asked  by  the  plaintiffs.  It  was  in  these  words:  'In  the  state 
of  California  the  right  to  the  use  of  water  becomes  fixed  after 
five  years'  adverse  enjoyment  of  the  same.'  There  was  some 
evidence,  in  our  view,  on  which  such  a  charge  might  be  predi- 
cated. Further,  in  our  opinion,  the  plaintiffs  were  entitled  to 
recover  if  there  was  a  diversion,  which  seems  to  have  been  clearly 
shown.  In  fact,  the  diversion  was  not  denied  in  the  answer,  so 
that  the  charge  objected  to  was  immaterial,  and  did  no  injur3\" 
We  have  thus  quoted  in  full  every  instruction  of  the  trial 
court,  and  every  portion  of  the  opinion  of  the  supreme  court  in 
this  case,  which  directly  or  indirectly  relates  to  the  riparian 
rights  of  riparian  owners,  or  to  unlawful  diversion  of  water,  or 
to  the  general  question  concerning  the  right  to  use  the  water  for 
purposes  of  irrigation.  All  the  other  instructions  as  reported, 
and  all  the  remaining  portions  of  the  opinion,  deal  exclusively 
with  the  measure  of  damages  in  this  particular  case,  how  far  the 
plaintiffs  were  entitled  to  recover  for  the  value  of  the  crops  which 

(233) 


§    129  IRRIGATION.  [Ch.  8. 

they  would  have  raised  if  their  land  had  been  irrigated,  and  by 
what  evidence  that  value  could  be  established.  In  this  discus- 
sion no  allusion  whatever  is  made  to  riparian  rights  in  general, 
nor  to  the  general  right  of  a  riparian  proprietor  to  use  the  water 
of  the  streaui  for  the  purpose  of  irrigating  his  land. 

§  129.     Limited  authority  of  foregoing  decision. 

It  is  very  plain,  from  the  foregoing  description  and  quota- 
tions, that  the  general  questions  concerning  the  extent  of  private 
riparian  rights,  and  especially  concerning  the  right  to  use  the 
waters  of  the  stream  for  irrigation,  are  not  determined  by  this 
case,  except  so  far  as  a  doctrine  may  be  regarded  as  settled 
when  it  is  tacitly  accepted  by  both  the  litigant  parties  at  a  trial, 
and  its  correctness,  therefore,  is  not  questioned  before  or  b}^  the 
appellate  court.  The  instructions  of  *the  trial  court,  purporting 
to  embody  the  general  rules  as  to  the  use  of  water  for  irrigation 
by  a  private  riparian  proprietor,  were  not  excepted  to  by  the 
defendants,  and  the  rules  thus  laid  down  were  therefore  as- 
sumed to  be  correct /or  this  case  by  the  supreme  court  on  appeal; 
but  such  assumption  does  not  necessarily  establish  these  rules  as 
correct  for  all  cases, — does  not  settle  them  as  general  rules  of  the 
law  defining  and  fixing  the  rights  which  belong  to  private  ri- 
parian proprietorship.  There  are  other  features  of  this  case,  as 
reported,  which  prevent  it  from  being  a  final  settlement  of  the 
important  general  questions  under  discussion.  In  the  first 
place,  it  does  not  clearly  appear  in  what  relations  the  two  liti- 
gant parties,  plaintiffs  and  defendants,  were  regarded  by  the 
court  as  standing  towards  each  other, — whether  they  were  both 
regarded  as  two  riparian  proprietors  upon  the  same  stream,  and, 
therefore,  as  having  equal  rights  to  the  use  of  its  waters;  or 
whether  the  plaintiffs  were  regarded  as  riparian  proprietors  upon 
one  stream,  viz.,  the  Mormon  slough,  and  the  defendants  as  ap- 
propriating and  diverting  the  water  of  that  stream  for  the  bene- 
(234; 


Ch.   8.]  IRRIGATION.  §    129 

fit  of  their  land,  which  was  not  situated  upon  its  banks.  The 
Calaveras  river  and  the  Mormon  slough  might  be  regarded  as 
one  stream,  although  divided  into  two  branches,  in  which  case 
the  plaintiffs  might  be  in  the  position  of  upper,  and  the  defend- 
ants of  lower,  proprietors  on  the  single  stream.  The  instruc- 
tions of  the  trial  court  seem  to  have  taken  this  view.  On  the 
other  hand,  the  Mormon  slough  might  be  regarded  as  a  single 
stream,  and  the  plaintiffs  as  riparian  proprietors  upon  it,  while 
the  defendants  were  wrongfully  diverting  and  appropriating  its 
waters,  because  they  were  not  proprietors  of  land  upon  its  banks. 
The  language  of  the  opinion  of  the  supreme  court,  already 
quoted, — "further,  in  our  opinion,  the  plaintiffs  were  entitled 
to  recover  if  there  was  a  diversion," — tends  somewhat  to  sustain 
this  view  as  the  one  taken  by  that  court. 

In  the  second  place,  the  two  instructions  of  the  trial  court, 
which  purported  to  embody  the  general  rules  concerning  the 
use  of  water  for  irrigation,  and  which  were  not  substantially  ob- 
jected to  by  the  defendants,  will  be  found,  on  careful  examina- 
tion, not  to  be  entirel}'^  harmonious;  in  fact,  they  are  susceptible 
of  such  a  construction  as  will  make  them  directly  conflicting.  In 
one  of  these  instructions  the  trial  court  said:  "The  plaintiff  had 
not  the  legal  right  to  use,  for  the  purpose  of  irrigation,  all  of 
the  natural  waters  of  the  Calaveras  river  which  flowed  down  the 
Calaveras  river  and  the  Mormon  slough.  The  other  riparian 
proprietors  of  land  on  the  Mormon  slough  had  a  legal  right  to 
use  such  natural  Avaters  equally  with  the  plaintiffs.  The  plain- 
tiffs had  no  legal  exclusive  right  to  use  such  natural  waters  for 
the  purpose  of  irrigation  in  excess  of  their  just  and  fair  propor- 
tion thereof."  It  will  be  noticed  here,  in  confirmation  of  what 
we  have  already  said,  that  the  court  does  not  say  "the  other 
riparian  proprietors  of  land  on  the  Mormon  slough,  (md  on  the 
Calaveras  river,  had  a  legal  right  to  use  the  Avaters  equally  Avith 
the  plaintiffs."     It  thus  fails  to  show  clearly  Avhether  the  plain- 

C235) 


§129  IRRIGATION.  [Ch.  8. 

tiffs  and  the  defendants  were  regarded  as  riparian  proprietors 
on  the  same  stream.  But,  passing  by  this  criticism,  the  in- 
struction furnishes  a  plain,  definite  rule.  It  places  the  rights  of 
all  riparian  proprietors  to  use  the  stream  for  irrigation  upon  a 
perfect  equality.  No  proprietor  has  any  advantage  or  superior 
light  to  use  the  water  for  such  purpose,  by  reason  of  his  being 
located  higher  up  on  the  stream  than  others.  This  rule  clearly 
and  unequivocally  distinguishes  between  the  use  of  water  for 
irrigation,  and  its  use  for  so-called  natural  purposes,  viz.,  do- 
mestic purposes  and  watering  of  stock.  By  this  rule  the  right 
•of  every  riparian  proprietor  to  use  the  water  for  irrigation  is 
limited,  regulated,  and  controlled  by  the  equal  right  of  every 
other  proprietor  on  the  same  stream  to  use  its  waters  for  similar 
purposes. 

It  will  be  remembered  that  the  common-law  doctrines  distin- 
guish between  certain  uses  of  water  called  natural  and  all  others. 
It  is  the  settled  rule  that,  while  a  riparian  proprietor  must  use 
the  water  in  a  reasonable  manner  and  to  a  reasonable  amount, 
he  is  entitled  to  take  all  of  the  water  which  is  reasonably  nec- 
essary in  manner  and  amount  to  supply  his  natural  purposes, 
namely,  his  domestic  purposes  and  the  watering  of  his  stock, 
even  if  so  much  of  the  water  of  the  stream  is  thus  consumed 
that  there  is  not  a  sufficient  amount  left  flowing  in  its  channel 
to  supply  the  similar  uses  of  the  proprietors  below  him.  In 
this  single  respect  the  common  law  gives  a  natural  superiority 
of  right  to  a  proprietor  higher  up  the  stream  over  one  lower 
down;  but  the  superiority  is  strictly  confined  to  the  natural  uses 
of  domestic  purposes  and  watering  stock. ^  The  real  question 
to  be  determined  is  whether  the  irrigation  of  lands  is  one  of 
these  natural  uses,  standing  upon  the  same  footing  with  domes- 
tic wses  and  the  watering  of  stock.     The  instruction  quoted 

^See  Ferrea  v.  Knipe,  28  Cal.  341  344,  per  Currey,  J. 
(236) 


Ch.  8.]  IRRIGATION.  §   129 

above  most  unequivocally  answers  this  question  in  the  negative, 
and  gives  one  proprietor  no  preference  whatsoever  over  the  other 
proprietors  in  the  use  of  the  stream  for  the  purpose  of  irrigation. 
The  second  instruction,  to  which  we  have  referred,  seems  to  put 
irrigation  on  the  same  footing  with  domestic  purposes.  This 
instruction  was  as  follows:  "Every  riparian  owner  upon  a  stream 
has  a  right  to  use,  in  a  reasonable  way,  the  water  of  said  stream 
for  domestic  purposes,  for  the  irrigation  of  his  land,  or  for  pro- 
pelling machinery,  if  the  quantity  of  water  will  warrant  such 
use  above  the  amount  required  for  domestic  purposes."  So  far 
as  this  instruction  can  be  construed  as  laying  down  any  rule, 
it  plainly  seems  to  place  irrigation  and  domestic  purposes  upon 
the  same  footing,  and,  if  so,  it  is  conflicting  with  the  doctrine 
announced  in  the  other  instruction  previously  quoted.  We 
have  thus  analyzed  these  instructions,  and  the  rules  which  they 
purport  to  embody,  for  the  purpose  of  showing  that,  although 
tacitly  adopted  by  the  supreme  court,  because  not  objected  ta 
on  the  trial,  they  do  not  furnish  any  authoritative  and  final  set- 
tlement of  the  questions  at  issue.  The  instruction  last  above 
quoted  is  open  to  the  gravest  criticism;  it  mingles  up  subjects 
entirely  unlike.  The  use  of  water  for  "domestic"  purposes  nec- 
essarily consumes  it.  And  yet,  if  the  manner  and  amount  are 
reasonable,  the  proprietor  may  use  and  thereby  consume  all 
that  is  reasonably  necessary,  under  the  circumstances,  even 
though  the  natural  flow  of  the  stream  is  thus  so  diminished  that 
there  is  not  left  a  supply  for  the  proprietors  below.  The  use  of 
water  for  irrigation  also  consumes  it.  It  has  been  claimed  that 
irrigation  is  a  natural  use,  and  that  the  right  of  a  proprietor  to 
use  and  consume  water  for  irrigation  is  the  same  in  nature  and 
extent  as  the  right  to  use  and  consume  it  for  domestic  purposes 
and  for  the  watering  of  stock. 

But,  on  the  other  hand,  the  use  of  water  for  propelling  ma- 
chinery does  not  consume  it.     The  settled  doctrines  of  the  com- 

(237) 


§130  IRRIGATION.  [Ch.  8. 

mon  law  allow  a  riparian  proprietor  to  use  the  water  of  a  stream 
— the  whole  stream,  if  needed — as  it  passes  through  his  land, 
for  the  purpose  of  propelling  machinery,  provided  he  returns 
the  water,  undiminished  in  quantity  and  undeterior^ted  in  qual- 
ity, into  the  natural  channel  of  the  stream  before  it  leaves  his 
own  land  and  enters  that  of  the  proprietor  next  below  him. 
Such  a  use  for  propelling  machinery,  under  these  limitations, 
cannot  possibly  injure  the  other  riparian  proprietors  either  above 
or  below  him  on  the  same  stream.  There  is  therefore  no  anal- 
ogy between  the  use  of  water  for  propelling  machinery  and  its 
use  for  domestic  purposes  or  for  irrigation.  These  various  uses 
are  governed  by  entirely  different  rules,  and  depend  upon  en- 
tirely diflerent  considerations.  Our  review  of  this  case  does  not 
touch  upon  the  decision  made  by  the  supreme  court.  That 
tribunal  could,  of  course,  only  deal  with  the  questions  presented 
to  it  by  the  record, — the  questions  raised  by  the  exceptions. 

§  130.     Tendency  of  decision  in  Ellis  v.  Tone. 

Although  this  case  of  Ellis  v.  Tone,  as  we  have  shown  by  the 
foregoing  examination,  is  of  little  value  in  settling  the  important, 
general  doctrines  as  to  the  rights  of  private  riparian  proprietors 
in  the  law  of  California,  yet  it  has  a  certain  tendency  towards 
such  a  settlement.  It  plainly  distinguished  between  the  case 
of  a  stream  running  wholly  through  public  land,  and  that  of  a 
stream  bordered  by  the  lands  of  private  owners.  Although 
the  cause  of  action  arose  in  1877,  several  years  after  the  Civil 
Code  took  effect,  no  allusion  whatever  is  made,  by  the  court  or 
the  counsel,  to  the  provisions  of  the  Code  relating  to  water-rights. 
The  title  of  the  Code  on  this  subject  seems  to  have  been  tacitly 
ignored  as  inapplicable  to  such  a  case.  The  arguments  of  the 
counsel  for  both  parties,  as  reported,  freely  cite  text-books  and 
decisions  based  upon  and  representing  the  common-law  doc- 
trines, but  they  do  not  cite  the  Code.  It  is  probable  that  the 
(238) 


Ch.  8.]  IRRIGATION.  §   131 

case,  as  a  whole,  proceeded  uj^on  the  assumption  that  the  Cal- 
averas river  and  the  Mormon  slongh  running  out  of  it  formed 
one  stream  in  contemplation  of  law,  and  intended  to  deal  with 
the  rights  of  the  two  litigant  parties  as  though  both  were  ripa- 
rian proprietors  upon  that  single  stream;  in  other  words,  it  in- 
tended to  lay  down  rules  of  law  applicable  to  two  proprietors  in 
such  a  condition.  In  regard  to  the  use  of  water  for  irrigation, 
the  decision,  as  a  whole,  seems  to  deny  the  right  of  any  riparian 
proprietor  to  use  all  the  amount  of  water  which  may  be  reason- 
ably necessary  to  irrigate  his  lands,  if  by  such  use  the  water  left 
flowing  down  the  stream  is  rendered  insufficient  for  the  similar 
purposes  of  other  riparian  proprietors.  On  the  contrary,  the 
case  seems  to  regard  the  right  to  use  the  water  of  a  stream  for 
irrigation  as  belonging  alike  to  all  the  riparian  proprietors  upon 
the  stream;  that  each  proprietor  is  entitled  to  use,  for  irrigating 
his  lands,  only  so  much  of  the'water  of  the  stream  as  is  in  ex- 
cess over  and  above  the  amounts  which  are  requisite  to  supply 
the  similar  jDurposes  and  uses  of  all  the  other  proprietors  upon 
the  same  stream.  In  fact,  the  right  of  each  riparian  proprietor 
upon  any  particular  stream  to  use  its  water  for  irrigation  must 
depend,  among  other  things,  upon  the  size  of  the  stream,  the 
amount  and  volume  of  water  naturally  flowing  down  its  chan- 
nel, the  number  of  riparian  proprietors  upon  it,  the  amount  or 
acreage  of  the  land  entitled  to  irrigation  held  by  each  of  these 
proprietors,  and  other  similar  considerations.  Such,  as  it  ap- 
pears to  us,  is  the  tendency  of  the  decision  in  Ellis  v.  Tone,  al- 
though it  cannot,  in  our  opinion,  be  said  that  the  case  author- 
itatively and  finally  decides  or  settles  any  of  these  conclusions. 

§  131.     The  question  as  to  irrigation  stated. 

We  have  thus  thrown  all  the  light  of  authority  upon  the  par- 
ticular but  most  important  question,  how  far  do  the  riparian 
rights  of  private  riparian  proprietors  include  the  right  to  use  the 

(239) 


§    131  IRRIGATION.  [Ch.  8, 

water  of  the  stream  for  the  purjjose  of  irrigating  their  riparian 
lands  under  the  law  of  California  and  of  Nevada?  The  previ- 
ous discussions  upon  principle,  as  well  as  upon  authority,  have 
unmistakably  led  to  the  conclusion  that  this  question  has  not 
yet  been  definitely  and  finally  settled  by  judicial  decision.  All 
of  the  fundamental  doctrines  which  were  accepted  by  both  par- 
ties in  the  recent  case  of  Ellis  v.  Tone,  and  upon  which  that 
case  was  decided,  as  described  in  a  former  section,  might  be 
questioned  or  denied,  and  might  possibly  be  rejected  by  a  sub- 
sequent decision.  Any  answer  which  we  shall  attempt  to  give, 
must  therefore,  to  a  great  extent,  be  merely  speculative.  It  can 
only  be  an  expression  of  our  own  individual  opinion  derived 
from  a  consideration  of  general  principles,  and  from  the  tendency 
of  previous  adjudications.  It  cannot  be  regarded  as  a  definite 
statement  of  the  established  and  accepted  rule  of  law.  If  we 
are  correct,  our  opinion  will,  doubtless,  be  soon  confirmed  by 
the  courts.  If  Ave  are  wrong,  then  our  error  must  run  through 
our  whole  course  of  reasoning  covering  the  rights  of  private  ripa- 
rian proprietors,  as  distinguished  from  the  rights  to  use  public 
streams,  and  especially  the  interpretation  which  we  had  given 
to  the  provisions  of  the  Civil  Code,  and  some  entirely  different 
theory  of  private  water-rights  must  be  adopted  by  judicial  au- 
thority. We  shall  proceed,  however,  to  give  in  brief  terms  an 
answer  to  the  general  question  formulated  above, — an  answer 
which,  in  our  opinion,  results  directly,  and  as  a  necessary  in- 
ference, from  the  doctrines  which  have  been  established  by  the 
unbroken  series  of  decisions  made  by  the  supreme  court  of  Cali- 
fornia, and  quoted  in  our.former  chapters.  Those  decisions  have 
been  so  frequently  cited  and  so  fully  described,  and  the  doc- 
trines announced  by  them  have  been  so  elaborately  discussed, 
that  no  more  special  reference  need  be  made  to  them  as  author- 
ities for  our  conclusions. 

The  question  is,  how  far  do  the  riparian  rights  of  private  ri- 
(240) 


Ch.  8.]  IRRIGATION.  §    132 

parian  proprietors,  by  the  law  of  California  and  of  Nevada,  in- 
clude the  right  to  use  the  waters  of  the  stream  for  the  purpose  of 
irrigating  their  riparian  lands?  We  shall  assume,  without  restat- 
ing or  rearguing,  the  positions  established  in  our  previous  arti- 
cles,— namely,  that  the  provisions  o^  the  Civil  Code  have  no 
application  to  private  riparian  proprietors  owning  lands  on  the 
banks  of  a  private  stream ,  but  the  water-rights  of  such  propri- 
etors are  left  untouched  and  unaffected  by  the  Code;  and  that 
the  rights  of  such  private  riparian  proprietors  are  those  recog- 
nized, conferred,  regulated,  and  protected  by  the  common-law 
doctrines  on  the  subject, — doctrines  substantially  the  same  as 
those  so  fully  and  carefully  stated  by  the  supreme  court  of  Ne- 
vada in  the  case  of  Van  Sickle  v.  Haines. 

§  132.     No  right  to  irrigate  non-riparian  lands. 

In  the  first  place,  a  private  riparian  proprietor  has  no  right 
whatever  to  divert  or  use  an}'  water  of  the  stream  for  the  pur- 
pose of  irrigating  lands  which  do  not  adjoin  or  abut  upon  the 
stream, — lands  which  are  not  strictly  riparian.  The  appropri- 
ation and  division  of  the  waters  of  a  natural  stream,  for  the  ben- 
efit of  a  tract  of  land  not  situated  upon  one  or  both  of  its  banks, 
are  wholly  unknown  to  the  common  law.  They  are  a  part  and 
parcel  of  the  peculiar  system  which  has  grown  up  in  the  Pacific 
communities  primarily  and  mainly  from  the  local  customs  and 
needs  of  those  engaged  in  mining;  and  they  are  confined  en- 
tirely to  the  public  streams, — to  those  streams  flowing  through 
the  public  lands  of  the  United  States, — or,  under  the  Civil 
Code,  of  the  state  of  California.  The  common-law  doctrines  re- 
strict the  use  of  waters  of  natural  streams  to  the  lands  bordering 
on  those  streams,  and  the  right  to  use  the  waters  is  held  exclu- 
sively by  the  private  owners  of  such  lands  in  their  character  as  ri- 
parian owners.  There  is  nothing  more  completely  antagonistic 
to  the  common-law  system,  nothing  which  would  more  com- 
POM.Rip.— 16  (241) 


§    133  IRRIGATION.  [Ch.  8. 

pletely  destroy  the  equality  and  equity  of  the  common  distribu- 
tion of  rights  among  all  the  private  riparian  proprietors  on  any 
particular  stream,  than  the  appropriation  and  diversion  of  its 
waters,  by  means  of  ditches  or  canals,  for  the  benefit  of  lands 
not  adjoining  the  stream,  by  persons  who  are  not,  with  respect 
to  such  lands,  riparian  proprietors.  If  a  private  riparian  pro- 
prietor owns  a  tract  of  land  actually  bordering  on  the  stream,  he 
may  possibly  be  entitled  to  use  the  water  for  the  purpose  of  ir- 
rigating the  entire  tract,  no  matter  how  great  may  be  its  extent; 
how  far  distant  from  the  stream  may  be  its  exterior  line;  but 
his  right  to  use  a  quantity  of  the  water  sufficient  for  that  pur- 
pose must  depend  upon  other  considerations  to  be  mentioned 
hereafter.  It  is  certain,  however,  that  no  person  can  take  water 
from  such  a  stream  for  the  purpose  of  irrigating  his  tract  of  land 
which  is  separated  from  the  stream  by  the  intervening  lands  be- 
longing to  other  and  riparian  proprietors. 

§  133.     Prior  appropriation  gives  no  exclusive  right. 

In  the  second  place,  a  prior  appropriation  can  give  no  ex- 
clusive right  to  the  use  of  the  water  for  purposes  of  irrigation, 
and  no  superior  right  nor  preference  as  to  the  quantity  of  the 
water  consumed  for  such  purposes.  Whether  a  person  was  the 
very  first  one  who  acquired  title  to  lands  on  the  banks  of  a 
given  stream,  and  as  such  sole  owner  first  began  to  use  its  wa- 
ters, or  whether,  after  many  riparian  proprietors  had  acquired 
their  respective  titles,  he  was  the  first  one  of  them  to  use  its 
waters,  in  either  case  the  prior  appropriation  can  give  no  right 
to  use  an  unlimited  quantity,  or  an  excess  in  quantity,  nor  any 
other  relative  superiority  in  the  use  of  the  water  for  irrigation, 
over  all  the  other  private  riparian  proprietors  on  the  same  stream. 
The  doctrine  of  prior  appropriation,  as  has  been  shown,  is  for- 
eign to  the  common  law.  So  far  as  recognized  by  the  law  of 
California  and  of  Nevada,  it  is  confined  to  public  streams,  and 
(242) 


Ch».  8.]  IRRIGATION.  §    134 

arose  from  local  customs  and  the  peculiar  needs  of  miners,  al- 
though it  was  extended,  in  its  application  to  public  streams,  to 
other  businesses,  occupations,  and  uses  besides  mining.  "The 
fundamental  conception  of  the  common-law  system  is  the  purely 
equitable  principle  of  relative  equality  of  right  among  all  the 
private  riparian  proprietors  upon  the  same  stream.  Nature  gives 
to  all  the  riparian  proprietors  on  any  stream  an  advantage,  grow- 
ing out  of  their  location,  over  other  owners  whose  lands  do  not 
adjoin  a  water-course;  and  this  natural  right  cannot  be  taken 
away  by  the  law,  although  its  enjoyment  may  be  interfered 
with  or  prevented  by  arbitrary  legislation. 

§  134.     Relative  equality  of  riparian  o-wrners. 

The  common  law  recognizes  this  natural  right  of  all  the  riparian 
proprietors  on  the  same  stream,  resulting  thus  from  their  loca- 
tion, and  distributes  and  regulates  it  among  them  all  according  to 
the  equitable  principle  of  relative  equality.  All  have  relatively 
the  same  rights  to  enjoy  the  benefits  of  the  water  as  it  flows  by 
or  through  their  lands,  not  depending  upon  the  time  when  the 
use  began,  but  upon  the  extent  of  their  riparian  lands, — upon 
the  quantity  of  their  lands  susceptible  of  being  lawfully  bene- 
fited by  the  water.  This  notion  of  equality,  as  has  been  shown, 
runs  through  and  shapes  the  entire  system  of  common-law  doc- 
trines concerning  the  rights  to  the  waters  of  natural  streams. 
Any  legislation  which  ignores  or  violates  this  equitable  notion 
of  equality  is  so  far  unjust.  To  this  otherwise  universal  rule 
the  common  law,  as  has  been  shown,  recognizes  one  partial  ex- 
ception. As  the  use  of  water  for  drinking,  both  by  man  and 
beast,  and  for  other  purely  domestic  and  household  purposes, 
is  essential  to  the  preservation  of  life,  the  common  law  gives  a 
preference  to  its  use  for  these  so-called  natural  purposes.  To 
this  end  a  riparian  proprietor  is  allowed  to  use  all  the  water  of 
a  stream  reasonably  necessary  for  domestic  purposes  and  water- 

C243) 


§    135  IRRIGATION.  [Ch.'S. 

ing  stock,  even  though  the  natural  flow  of  the  stream  was 
thereby  lessened,  and  the  supply  for  the  other  proprietors  lower 
down  was  diminished.  This  exception,  however,  was  carefully 
restricted,  and  was  never  extended  be3'^ond  its  reasons.  It  does 
not  and  cannot  include  irrigation.  To  permit  a  proprietor  higher 
up  the  stream,  or  a  prior  appropriator,  to  have  an  unrestricted 
use  of  water  for  purposes  of  irrigation,  would  be  a  gross  invasion 
of  natural  rights,  and  a  virtual  destruction  of  the  utility  of 
streams  to  the  entire  community  of  riparian  owners  through 
which  they  flow.  This  is  the  view  taken  by  the  contending 
parties,  and  therefore  adopted  by  the  court  for  the  purposes  of 
that  case,  in  Ellis  v.  Tone;  but,  as  we  have  shown,  it  is  not 
definitely  settled  by  that  decision. 

§  135.     Size  of  stream. 

In  the  third  place,  there  is  nothing  in  the  common-law  doc- 
trines, as  the  supreme  court  of  Nevada  have  stated  in  the  case 
of  Van  Sickle  v.  Haines,  which  prohibits  the  use  of  water  for 
irrigation  by  the  private  riparian  proprietors  on  all  streams,  as  a 
part  of  their  general  rights.  The  fundamental  notion  being  that 
of  relative  equality  of  right  among  all  the  proprietors  on  the 
same  stream,  it  is  evident  that,  if  the  natural  flow  of  the  water 
is  sufficient  to  allow  each  one  of  them  to  take  an  amount  suffi- 
cient for  the  needs  of  his  own  tract  of  riparian  land,  without  in- 
fringing upon  the  equal  rights  of  the  others,  no  injury  could 
possibly  result  from  such  an  appropriation  and  use.  The  only 
difficulty  would  arise  where  the  natural  flow  of  the  stream  was 
not  large  enough  to  furnish  such  a  complete  and  unrestricted 
supply  to  every  proprietor. 

The  common  law  permits  each  proprietor  to  use  the  water  of 
a  stream,  as  it  flows  by  or  through  his  own  land,  for  any  pur- 
pose, like  the  propelling  of  machinery,  which  does  not  consume 
it  to  any  substantial  extent.  But  a  use  which  necessarily  con- 
(244) 


Ch.  8.]  IRMGATION.  §   136 

Slimes  the  water — like  that  for  purposes  of  irrigation — lessens 
the  natural  flow  of  the  stream,  and  therefore  tends  to  invade  the 
equal  rights  of  other  riparian  proprietors.  If,  however,  after 
any  proprietor  has  used  and  consumed  all  the  water  which  he 
reasonably  needs  for  the  irrigation  of  his  own  land,  there  is  still 
left  an  amount  flowing  down  the  stream  adequate  for  the  simi- 
lar needs  of  all  the  other  riparian  proprietors  below  him,  the  re- 
sult of  his  act  would  at  most  be  a  damnum  absque  injuria.  On 
the  larger  streams  of  the  state,  therefore,  in  which  the  natural 
flowof  water  is  considerable  and  is  constant  throughout  all  seasons 
of  the  year,  irrigation  might  be  resorted  to,  it  would  seem,  by 
the  private  riparian  proprietors,  without  any  practical  violation 
of  the  common-law  doctrines.  On  the  minor  streams,  in  which 
the  natural  flow  of  water  is  small  and  inconstant,  varying  with 
different  seasons,  the  difficulty  is  much  greater.  In  fact,  it 
seems  hardly  possible  for  a  proprietor  upon  such  a  small  and 
varying  stream  to  consume  a  quantit}^  of  the  water  sufficient  for 
the  irrigation  of  his  own  land,  without  thereby  lessening  the 
natural  flow  to  such  an  extent  as  to  invade  the  equal  rights  of 
the  other  proprietors. 

§  136.     Reasonable  use  for  irrigation. 

Finally,  it  is  very  plain  that  the  only  right  of  a  private  ri- 
parian proprietor  to  appropriate  the  water  of  the  stream  for  the 
purpose  of  irrigation,  which  is  consistent  with  the  common-law 
•doctrines,  is  a  right  which  belnngs  in  relative  equality  to  all  the 
proprietors  alike.  The  quantity  of  water  which  any  proprietor 
may  divert  must  depend,  in  the  first  place,  upon  the  extent  of 
his  own  land  and  the  amount  reasonably  requisite  for  its  irriga- 
tion; and,  in  the  second  place,  upon  the  extent  of  the  lands  held 
by  all  the  other  riparian  proprietors,  and  the  amount  reasonably 
requisite  for  their  irrigation;  and,  in  the  third  place,  upon  the  size 
of  the  stream  itself,  and  its  capacity  to  furnish  a  suppl}'  for  all 

(245) 


§    137  IRRIGATION.  [Ch.  8. 

these  proprietors.  Or,  to  state  the  same  position  in  other  words, 
each  riparian  proprietor  is  only  entitled  to  use,  for  the  purpose 
of  irrigating  his  own  land,  that  portion  of  the  stream  which  is 
in  excess  over  the  amount  thereof  to  which  all  the  other  propri- 
etors are  equally  entitled  for  the  purpose  of  irrigating  their  own 
tracts  of  land.  Any  other  rule  than  this  must  necessarily  vio- 
late natural  justice  and  equity.  It  is  plain,  however,  that 
when  the  stream  is  small,  where  the  flow  of  water  is  varying, 
where  its  amount  is  insufficient  to  furnish  a  constant  and  con- 
siderable excess  over  and  above  the  needs  of  all  the  riparian  pro- 
prietors, this  common-law  rule  can  only  be  a  very  imperfect 
and  impracticable  guide;  it  needs  to  be  supplemented  and  aided 
by  positive  legislation.  The  character  and  object  of  such  legis- 
lation we  shall  attempt  to  explain  in  the  succeeding  and  final 
chapter. 

§  137.     Easements  and  adverse  user. 

All  the  foregoing  discussion  concerning  the  rights  of  private 
riparian  proprietors  has  assumed  and  treated  their  rights  as  they 
exist  at  the  law,  unaffected  by  agreement  or  other  conduct  among 
the  proprietors  themselves.  It  is  hardly  necessary  to  state  that 
any  private  riparian  proprietor  upon  a  stream  may  obtain,  as 
against  other  proprietors,  special  rights  to  use  the  water,  in  the 
nature  of  easements  or  servitudes,  far  other  and  greater  than  those 
which  the  law  confers  upon  him  simpl}'  as  a  riparian  proprietor. 
Thus,  for  example,  he  may  obtain,  by  grant  from  other  propri- 
etors, or  by  prescription  against  them,  the  exclusive  right  to  any 
•portion  of  the  waters  of  a  stream  for  purposes  of  irrigation;  and 
thus  a  prior  appropriation  may  by  prescription  ripen  into  a 
lawful  right,  as  against  all  the  other  riparian  proprietors,  to  use 
the  entire  waters  of  a  stream  for  any  beneficial  purpose.  It  is 
not  our  design  to  enter  into  any  discussion  of  the  servitudes 
which  may  thus  be  acquired  by  grant  or  by  prescription.  The 
(2i6) 


i\ 


Ch.  8.]  IRRIGATION.  §   138 

law  on  this  subject  is  in  no  manner  peculiar  to  these  Pacific 
communities,  except  in  the  remarkably  short  statutory  period 
of  adverse  user — five  years — adopted  by  the  Code  of  California. 

§  138.     Relation  of  irrigation  to  the  natural  -wants. 

[Water  for  irrigation  is  not  a  natural  want  in  the  same  sense 
that  water  for  quenching  thirst  is,  which  a  riparian  proprietor 
may  satisfy  without  regard  to  the  rights  and  needs  of  proprietors 
below.  Thus  a  riparian  owner  may  lawfully  divert  the  water 
of  a  stream,  for  the  purpose  of  irrigating  his  land,  to  a  reason- 
able extent,  but  in  no  case  may  he  do  this  so  as  to  destroy,  or 
render  useless,  or  materially  affect,  the  application  of  the  water 
by  other  riparian  proprietors.^  Now,  it  follows  from  this  prin- 
ciple, in  the  first  place,  that  a  riparian  owner  cannot  divert  all 
the  water  of  a  stream,  for  the  purpose  of  irrigating  his  lands, 
without  regard  to  the  rights  of  other  owners,  even  though  the 
whole  stream  might  be  needed  for  the  sufficient  accomplishment 
of  his  purpose.  This  question  was  presented  in  the  most  di- 
rect and  explicit  manner  in  the  recent  case  of  Learned  v.  Tange- 
man.^  The  action  was  brought  by  a  private  riparian  proprietor 
against  another  private  riparian  proprietor,  having  lands  situ- 
ated upon  the  banks  of  the  same  stream  higher  up  than  the 
lands  of  the  plaintiff.  The  defendant  had  diverted  the  water 
of  the  stream  for  the  purpose  of  irrigating  his  own  riparian  lands, 
and  the  plaintiff  complained  that  he  had  diverted  and  used  more 
than  the  amount  to  which  he  was  entitled,  and  had  thereby  de- 
prived the  plaintiff  of  the  portion  of  the  waters  of  the  stream  tO' 
which  /le  was  entitled  for  the  irrigation  of  his  own  riparian  land. 
At  the  trial  the  judge  instructed  the  jury  that,  "if  they  believed, 
from  the  evidence  that  the  defendant  was  a  riparian  proprietor, 
and  used  the  water  of  the  stream  for  the  purpose  of  irrigating 

1  Union  Mill  Co.  v.  Ferris,  2  255  Cal.  334,  s.  c.  4  Pac.  Rep. 
Sawy.  176.  191. 

(247) 


§138  IRRIGATION.  [Ch.  8. 

his  lands,  and  ii.scd  no  more  than  ivas  necessary  for  that  iiurpose,  and 
returned  the  surplus  water  after  such  use  into  the  channel,  then 
they  should  return  a  verdict  for  the  defendant."  It  is  perfectly 
evident  that  this  instruction  of  the  trial  court  was  given  upon 
the  assumption  that  the  right  of  a  riparian  proprietor  to  use  the 
water  of  a  stream  for  the  irrigation  of  his  lands  is  identical  and 
co-extensive  with  the  natural  right  of  a  riparian  proprietor  to 
use  the  water  for  watering  his  cattle,  for  drinking,  and  for  other 
strictly  domestic  purposes;  that,  in  the  one  case  as  well  as  in 
the  other,  a  riparian  proprietor  is  entitled,  by  the  law,  to  divert 
and  consume  all  the  amount  of  the  stream  which  may  be  rea- 
sonably necessary  for  his  purposes,  even  though  a  sufficient 
quantit}^  is  not  left  remaining  to  flow  down  the  channel  for  sim- 
ilar needs  of  the  riparian  proprietors  below  him.  If  this  as- 
sumption of  the  lower  court  had  been  correct,  then  the  instruc- 
tion to  the  jury,  as  given  in  this  case,  would  undoubtedly  have 
stated  the  rule  of  law  applicable  to  the  I'acts  with  suljstantial  ac- 
curacy. But  the  decision  of  the  supreme  court  shows,  in  the 
clearest  and  most  positive  manner,  that  the  assumption  was  in- 
correct, and  that  the  right  to  use  water  for  irrigation  is  not  iden- 
tical or  co-extensive  with  the  right  to  use  it  for  watering  cattle 
and  other  like  domestic  purposes.  The  supreme  court,  after 
quoting  the  instruction  to  the  jury  as  given  above,  proceed  to 
condemn  it  in  the  following  language:  "This  (instruction)  was 
error,  for  by  it  the  jury  were  in  effect  told  that  the  defendant 
was  entitled  to  divert  and  use  all  of  the  water  of  the  stream,  if 
necessary  for  the  irrigation  of  his  land,  without  regard  to  the 
wants  or  necessities  of  the  other  riparian  proprietor."  The  judg- 
ment was  therefore  reversed,  and  a  new  trial  of  the  cause  was 
ordered.* 

^  [The  foregoing  account  of  the  which  appeared  in  the  "West  Coast 

case  of  Learned  v.  Tangeman  is  in  Reporter  after  the  close  of  the  se- 

the  language  of  Professor  Pome-  ries  which  forms  the  basis  of  tho 

roy,  and  is  taken  from  an  article  present  work.     Ed.] 
(248) 


Ch.  8.]  IRRIGATION.  §    138 

But,  in  the  second  place,  we  may  go  further  than  this,  and 
lay  down  the  rule  that  no  one  has  a  right  to  use  the  waters  of  a 
stream  for  irrigation  to  an  extent  materially  impairing  the  right 
of  another  riparian  proprietor  to  the  reasonable  use  of  the  same 
for  the  purpose  of  supplying  his  natural  wants  and  domestic  ne- 
cessities unless  he  has  gained  this  right  in  some  mode  known 
to  the  law,  as  by  grant  or  prescription.  In  other  words,  irriga- 
tion is  subordinate  to  the  natural  wants.  "The  right  to  irrigate, 
when  not  indispensable,  but  used  simply  to  increase  the  prod- 
ucts of  the  soil,  would  be  subordinate  to  the  right  of  a  co-pro- 
prietor to  supj)ly  his  natural  wants,  and  those  of  his  family, 
tenants,  and  stock;  as  to  quench  thirst,  and  to  the  right  to  use 
the  water  for  necessary  domestic  purposes.  Hence,  whether  the 
use  of  the  water  for  purposes  of  irrigation  is  reasonable  and  law- 
ful as  against  another  would  depend  upon  the  facts  of  the  par- 
ticular case.  If  the  stream  should  be  sufficiently  large  to  ad- 
mit of  necessary  irrigation  without  unreasonably  impairing  the 
rights  of  other  proprietors,  then  it  would  be  reasonable  and 
lawful;  otherwise  it  would  not."^  Hence,  when  the  stream  is 
small,  and  does  not  furnish  water  more  than  is  sufficient  to  sup- 
ply the  natural  wants  of  the  different  projirietors  living  on  it, 
none  of  the  projDrietors  can  use  the  water  for  irrigation.^  It  is 
in  this  light  that  we  must  understand  the  language  of  the  su- 
preme court  of  Pennsylvania,  where  it  is  said:  "Whenever  so 
much  of  the  volume  of  water  is  obstructed  as  to  be  plainly  per- 
ceptible in  its  practical  uses  below, — whenever  the  channels, 

1  Baker  v.  Brown,  55   Tex.  377.  purpose  would  therefore  afford  no 

In  Rhodes  v.  Whitehead,  27  Tex.  ground  of  complaint  by  the  lower 

304,  it  was  said:   "It  maybe  ad-  proprietors    if    it    were    entirely 

mitted  that  the  purpose  of  irriga-  consumed."    But  this  decision  was 

tion  is  one   of  the  natural  uses,  practically  overruled  by  Baker  v. 

such  as  thirst  of  people  and  cattle.  Brown,  supra. 

and    household    purposes,    which  2  Evans  v.  Merriweather,  3  Scam, 

must  absolute!}'  be  supplied.    The  493. 
appropriation  of  the  water  for  this 

(249) 


§    139  IRRIGATION.  [Ch.   8, 

which  before  were  filled,  exhibit  the  loss  of  the  accustomed 
fluid, — an  injury  is  committed  for  which  an  action  may  be  sus- 
tained, though  it  may  not  have  been  actually  used  by  the  lower 
proprietor." '] 

§  139.     Summary  of  principles. 

[It  has  thus  been  made  to  appear  that  there  is  no  right  to  use 
the  water  for  the  irrigation  of  non-riparian  lands;  that  a  prior 
appropriation  can  give  no  exclusive  right  to  the  use  of  the  wa- 
ters for  irrigation,  and  no  superior  right  as  to  the  quantity  of 
water  that  may  be  consumed  in  that  manner;  that  the  equita- 
ble principle  of  relative  equality  must  be  preserved  between  all 
the  riparian  owners;  that  it  is  a  part  of  the  general  riparian 
right  to  use  the  water  for  irrigation,  if  the  size  of  the  stream  is 
such  that  no  injury  is  thereby  done  to  any  other  proprietor; 
that  irrigation  is  not  one  of  the  natural  wants,  for  which  the 
whole  stream  may  be  consumed  if  necessary,  but  is  subordi- 
nate to  these  uses.  We  have  now  to  inquire  whether,  aside 
from  the  foregoing  specific  principles,  there  is  any  general  rule 
of  law,  applicable  to  all  cases  alike,  governing  the  riparian  right 
of  irrigation.  As  a  result  of  all  the  authorities,  it  may  be 
stated  that  the  only  rule  which  admits  of  general  application  is 
this:  The  use  of  water  for  irrigation  must  in  all  cases  be  rea- 
sonable, regard  being  had  to  the  rights  and  needs  of  all  the  other 
proprietors  on  the  same  stream;  and  reasonableness  is  a  question 
of  fact,  to  be  determined  upon  all  the  circumstances  of  the  par- 
ticular case.  In  order  that  this  may  appear  more  clearly,  it 
will  be  necessary  to  review  the  decisions  on  this  subject  at  some 
length.] 

» Miller  v.  Miller.  9  Pa.  St.  74. 
(250) 


Ch.  8.]  IRRIGATION.  §    140 

§  140.     Irrigation — The  English  authorities. 

[In  regard  to  the  right  of  a  riparian  proprietor  to  use  the  wa- 
ter of  the  stream  for  irrigation,  the  rule  in  England  appears  to 
be  that  he  may  do  so,  provided  he  restores  the  water  to  its  chan- 
nel in  a  volume  substantially  undiminished.^  The  most  impor- 
tant of  the  cases  dealing  with  this  topic  is  that  of  Embrey  v. 
Owen,  in  which  Parke,  B.,  observed:  "On  the  one  hand,  it 
could  not  be  permitted  that  the  owner  of  a  tract  of  many  thou- 
sand acres  of  porous  soil,  abutting  on  one  part  of  the  stream, 
should  irrigate  them  continually  by  canals  and  drains,  and  so 
cause  a  serious  diminution  of  the  quantity  of  water,  though 
there  was  no  other  loss  to  the  natural  stream  than  that  arising 
from  the  necessary  absorption  and  evaporation  of  the  water  em- 
ployed for  that  purpose.  On  the  other  hand,  one's  common 
sense  would  be  shocked  by  supposing  that  a  riparian  owner 
could  not  dip  a  watering-pot  into  the  stream  in  order  to  water 
his  garden,  or  allow  his  family  or  his  cattle  to  drink  it.  It  itj 
entirely  a  question  of  degree,  and  it  is  very  difficult,  indeed  im- 
possible, to  define  precisely  the  limits  which  separate  the  rea- 
sonable and  permitted  use  of  the  stream  from  its  wrongful  ap- 
plication; but  there  is  often  no  difficulty  in  deciding  whether  a 
particular  case  falls  within  the  permitted  limits  or  not."^ 

The  supreme  court  of  California,  however,  has  said  that  "a 
■priori  it  would  be  expected  that  the  decisions  in  Great  Britain 
and  Ireland  would  not  much  assist  the  inquiry,  since,  owing  to 
the  humidity  of  the  climate  of  those  islands,  it  must  rarely  hap- 
pen that  an}^  use  for  irrigation  can  be  reasonable;  and  for  any 
purpose  the  use  must  be  reasonable."^] 

*  Embrey  v.  Owen,  6  Exch.  352;  590;  Miner  v.  Gilnaour,  13  Moore, 

Swindon    Water-Works    v.   Wilts  P.  C.  156;  Norbury  v.  Kitchin,  ^ 

Canal  Co.,  L.  R.  7  H.  L.  697;  Earl  Jur.  (N.  S.)  132;  1  Add.  Torts,  §  89. 

of    Sandwich    v.  Great  Northern  2 Embrey  v.  Owen,  6  Exch.  352. 

Ry.,  L.  R.  10  Ch.  707,  711;   Samp-  3Lux  v.  Haggin,  (Cal.)  10  Pac. 

son  V.  Hoddinott,  1  C.  B.  (N.  S.)  Rep.  757. 

(251) 


§    142  IRRIGATION.  [Ch.  8. 

§  141.     French  law. 

[It  may  here  be  remarked,  by  way  of  illustration,  that,  by 
the  laws  of  France,  every  proprietor  of  land  bordering  on  a  run- 
ning stream  may  use  it  for  the  purpose  of  irrigating  his  land, 
and,  when  his  estate  is  intersected  by  such  water,  he  may  di- 
vert it  for  purposes  of  irrigation,  on  condition  that  he  restore  it 
at  the  boundary  of  his  property  to  its  ordinary  channel.  And, 
in  all  disputes  respecting  the  right  to  take  water  from  running 
streams,  the  courts  are  enjoined  to  reconcile  as  much  as  possible 
the  interests  of  agriculture  with  the  respect  due  to  property  and 
the  rights  of  individuals.'] 

§  142.     Review  of  the  American  authorities. 

[On  examining  the  decisions  in  the  eastern  states,  and  the 
opinions  of  the  text  writers,  we  shall  find,  notwithstanding  some 
diversity  of  language,  the  same  thread  of  principle  running 
through  them  all,  viz.,  that  the  use  must  be  reasonable,  due  re- 
gard being  had  to  the  equal  rights  of  all  the  riparian  owners. 
This  will  sufhciently  appear  from  the  following  extracts.  In 
an  early  Massachusetts  case  it  is  said:  "A  man  owning  a  close 
on  an  ancient  brook  may  lawfully  use  the  water  thereof  for  the 
purposes  of  husbandry,  as  watering  his  cattle,  or  irrigating  the 
close;  and  he  may  do  this  either  by  dipping  water  from  the 
brook,  and  pouring  it  upon  his  land,  or  by  making  small  sluices 
for  tlie  same  purpose;  and,  if  the  owner  of  a  close  below  is  dam- 
aged thereby,  it  is  damnum  absque  injuria.''''^ 

Chancellor  Kent  is  sometimes  quoted  as  proving  that  water 
cannot  be  employed  for  irrigation,  sometimes  as  proving  that  it 
may  be.  His  language  is  as  follows:  "Streams  of  water  are  in- 
tended for  the  use  and  comfort  of  man,  and  it  would  be  unrea- 

iCode  Napoleon,  liv.  2,  Nos.  640-645.     See  1  Add.  Torts,  §  89. 
2Weslon  V.  Alden,  8  Mass.  136. 
(252) 


" 


Ch.  8.]  IRRIGATION.  §   142 

sonable,  and  contrary  to  the  general  sense  of  mankind,  to  debar 
any  riparian  proprietor  from  the  application  of  water  for  do- 
mestic, agricultural,  or  manufacturing  purposes,  provided  the 
use  of  water  be  made  under  the  limitation  that  he  do  no  mate- 
rial injury  to  his  neighbor  below  him,  who  has  an  equal  right 
to  the  subsequent  use  of  the  same  water."  ^  On  this  passage  the 
supreme  court  of  California  makes  the  following  pertinent  obser- 
vations: "It  seems  to  us  that  the  foregoing  (although  a  very  dis- 
tinct statement  of  the  general  proj^osition)  ought  not  to  be  taken 
literally,  unless  the  words  'material  injury'  be  impressed  with 
a  signification  the  equivalent  of  a  substantial  deprivation  of  ca- 
pacity in  a  lower  proprietor  to  employ  the  water  for  useful  pur- 
poses. The  adjective  is  prefixed  to  ' injury,'  and  the  words  seem 
to  have  reference  to  the  enjoyment  of  the  use  by  the  inferior 
owner,  not  to  his  mere  abstract  right  to  the  use  as  against  oth- 
ers than  riparian  owners,  and  to  intimate  that  he  cannot  com- 
plain of  a  reasonable  exercise  of  the  use  by  another  who  pos- 
sesses the  general  right  in  common  with  himself.  The  passage, 
as  a  whole,  may  be  fairly  said  to  convey  the  idea  that  water  may 
be  used  for  agricultural  or  manufacturing  23urposes  when  such 
use  does  not  materially  deprive  the  lower  proprietor  of  water, 
either  for  drinking  or  for  agriculture."^ 

In  an  early  New  York  decision  it  is  said:  "The  defendant 
has  a  right  to  use  so  much  as  is  necessary  for  his  family  and  his 
cattle,  but  he  has  no  right  to  use  it  for  irrigating  his  meadow, 
if  thereby  he  deprives  the  plaintiff  of  the  reasonable  use  of  the 
water  in  its  natural  channel.  The  evidence  shows  that  the  de- 
fendant has  appropriated  the  whole  water  to  his  own  use,  and 
he  seems  to  suppose  that  he  possesses  that  right.'' ^  Again,  it 
is  said  that  the  riparian  proprietor  "may  make  a  reasonable  use 

13  Kent,  Comm.  429.  » Arnold  v.  Foot,  12  Wend.  330. 

2  Lux  v.  Haggin,  10  Pac.  Rep.  756. 

(253) 


§    142  IRRIGATION.  [Ch.  8. 

of  the  water  itself,  for  domestic  purposes,  for  watering  cattle,  or 
even  for  irrigation,  provided  it  is  not  unreasonably  detained  or 
essentially  diminished."' 

Some  of  the  earlier  cases,  it  will  be  perceived,  do  not  make  a 
very  clear  distinction  between  the  natural  and  artificial  uses  of 
the  water,  being  even  disposed  to  class  irrigation  among  the  for- 
mer. But  the  later  authorities  announce  the  rule  with  more  dis- 
crimination. Thus,  in  Gillett  v.  Johnson,^  Butler,  J.,  remarks: 
"The  right  of  the  defendant  to  use  the  stream  for  purposes  of  irri- 
gation cannot  be  questioned.  But  it  was  a  limited  right,  and  one 
which  could  only  be  exercised  with  a  reasonable  regard  to  the  right 
of  the  plaintiff  to  the  use  of  the  water.  It  was  not  enough  that 
the  defendant  applied  the  water  to  a  useful  and  proper  purpose, 
and  in  a  prudent  and  husband-like  manner.  She  was  also  bound 
to  apply  it  in  such  a  reasonable  manner  and  quantity  as  not  to 
deprive  the  plaintiff  of  a  sufficient  supply  for  his  cattle."  So 
in  a  New  Jersey  decision  it  is  held  that  the  right  of  every  ripa- 
rian owner  to  use  the  water  flowing  through  his  land  for  its 
proper  irrigation  is  subject  to  the  limitation  that  his  use  for  that 
purpose  must  be  such  as  not  essentially  to  interfere  with  the 
natural  flow  of  the  stream,  or  essentially  and  to  the  material  in- 
jury of  the  proprietors  below  to  diminish  the  quantity  of  water 
that  goes  to  them.^  And  the  court  in  Massachusetts  has  given 
a  satisfactory  discussion  of  the  subject,  from  which  we  quote  as 
follows:  "What  is  a  just  and  reasonable  use  may  often  be  a 
diflicult  question,  depending  on  various  circumstances.  To 
take  a  quantity  of  water  from  a  large  running  stream  for  agri- 
cultural or  manufacturing  purposes  would  cause  no  sensible  or 
practicable  diminution  of  the  benefit  to  the  prejudice  of  a  lower 

iBlanchard  v.  Baker,  8  Me.  253,  sparrell  v.  Richards,  30  N.  J.  Eq. 
366.  511. 

230  Conn.  180. 

(254) 


Ch.  8.]  IRRIGATION.  §    142 

proijrietor;  whereas,  taking  the  same  quantity  from  a  small  run- 
ning brook,  passing  through  many  farms,  would  be  of  great  and 
manifest  injury  to  those  below  who  need  it  for  domestic  supply 
or  watering  cattle;  and  therefore  it  would  be  an  unreasonable 
use  of  the  water,  and  an  action  would  lie  in  the  latter  case,  and 
not  in  the  former.  It  is  therefore,  to  a  considerable  extent,  a 
question  of  degree;  still  the  rule  is  the  same:  that  each  propri- 
etor has  a  right  to  a  reasonable  use  of  it  for  his  own  benefit,  for 
domestic  use,  and  for  manufacturing  and  agricultural  purposes. 
It  has  sometimes  been  made  a  question  whether  a  riparian  pro- 
prietor can  divert  water  from  a  running  stream  for  purposes  of 
irrigation;  but  this,  we  think,  is  an  abstract  question,  which 
cannot  be  answered  either  in  the  affirmative  or  negative,  as  a 
rule  applicable  to  all  cases.  That  a  portion  of  the  water  of  a 
stream  may  be  used  for  the  purpose  of  irrigating  land,  we  think 
is  well  established  as  one  of  the  rights  of  the  proprietors  of  the 
soil  along  or  through  which  it  passes;  yet  a  proprietor  cannot, 
under  color  of  that  right,  or  for  the  actual  purpose  of  irrigating 
his  own  land,  wAo%  abstract  or  divert  the  water-course,  or  take 
such  an  unreasonable  quantity  of  water,  or  make  such  an  un- 
reasonable use  of  it,  as  to  deprive  other  proprietors  of  the  sub- 
stantial benefits  which  they  might  derive  from  it  if  not  diverted 
or  used  unreasonably.  The  point  may,  perhaps,  be  best  illus- 
trated by  extreme  cases.  One  man,  for  instance,  may  take  wa- 
ter from  a  perennial  stream  of  moderate  size,  by  means  of  buck- 
ets or  a  pump,- — for  the  mode  is  not  material, — to  water  his 
garden.  Another  may  turn  a  similar  current  over  a  level  tract 
of  sandy  soil  of  great  extent,  which  in  its  ordinary  operation 
will  nearly  or  quite  absorb  the  whole  volume  of  the  stream,  al- 
though the  relative  positions  of  the  land  and  stream  are  such 
that  the  surplus  water,  when  there  is  any,  is  returned  to  the 
bed  of  the  stream.  The  one  might  be  regarded  as  a  reasonable 
use,  doing  no  perceptible  damage  lo  any  lower  proprietor,  while 

(255) 


§    1-13  IRUIGATION.  [Ch.  8. 

the  other  wonlil  nearly  deprive  him  of  the  whole  beneficial  use^ 
nivl  y<f  in  both  the  water  woiibl  be  used  for  irrigation."'] 

§  143.     Review   of  authorities    continued — The   Pa- 
cific cases. 

[U'hen  we  come  to  examine  the  later  decisions  of  the  courts 
on  the  Pacific  coast,  we  shall  find  no  repudiation  of  the  rule 
thus  deduced  from  the  common  law.  On  the  contrary,  the  same 
principle  has  been  accepted  as  determinative,  and  has  been  ap- 
plied and  carried  out  to  its  legitimate  conclusions;  and  this  with 
so  much  certainty  and  emphasis  that  the  question  must  be  re- 
garded as  definitely  settled  in  these  states  until  legislation  shall 
intervene.  Thus,  in  a  recent  Nevada  decision.  Chief  Justice 
Hawley  remarks:  "When  it  is  said  that  such  use  must  be  made 
of  the  water  as  not  to  afl'ect  the  material  rights  of  other  pro]:)rie- 
tors,  it  is  not  meant  that  there  can  be  no  diminution  or  decrease 
of  the  flow  of  water;  for,  if  this  should  be  the  rule,  then  no  one 
could  have  an}'  valuable  use  of  the  water  for  irrigation,  which 
must  necessarily,  in  order  to  be  beneficial,  be  so  used  as  to  ab- 
sorb more  or  less  of  the  water  diverted  for  this  purpose.  The 
truth  4s  that,  under  the  principles  of  the  common  law  in  rela- 
tion to  riparian  rights,  if  applicable  to  our  circumstances  and 
conditiori,  there  must  be  allowed  to  all,  of  that  which  is  com- 
mon, a  reasonable  use."^ 

In  the  important  case  of  Lux  v.  Haggin,^  decided  by  the 
supreme  court  of  California  in  1886,  the  rule  is  tersely  laid 
down  as  follows:   "By  our  law  the  riparian  proprietors  are  en- 

J Elliot  V.  Fitchburg  R.  Co.,  10  « Jones  v.  Adams,  (Nev.)  6  Pac. 
Cush.  193-195.     See,    further.  An-  Rep.  442.     See,  also,  Barnes  v.  Sa- 
thony  V.  Lapham,  5 Pick.  175;  New-  bron,  10  Nev.  217;  Swift  v.  Good- 
hall  V.  Ireson,  8  Cush.  595;  Evans  rich,  (Cal.)  11  Pac.  Rep.  561. 
V.    Merri weather.    3    Scam.     496;  sjo  Pac.  Rep.  755-764. 
Washb.    Easem.   234;  Gould,  Wa- 
ters, §  217. 

(256) 


Ch.  8.]  IRRIGATIOX.  §  143 

titled  to  a  reasonable  use  of  tlie  waters  of  the  stream  for  the  pur- 
pose of  irrigation.  What  is  such  reasonable  use  is  a  question 
of  fact,  and  depends  upon  the  circumstances  appearing  in  each 
particular  case."  Tlie  court  continued:  "The question  whether 
the  use  is  reasonable  is  not  so  mucli  whether  the  water  be- 
low is  diminished  thereby,  as  whether  the  lower  proprietor  is 
m.aterially  injured  by  the  diminution, — injured  by  not  receiv- 
ing the  benefit  in  due  proportion  of  the  enjoyment  to  which  he 
and  the  other  proprietors  are  entitled.  It  is  obvious  that  the 
use  of  water  for  the  purpose  of  irrigation  always  involves  some 
loss  by  evaporation  and  absorption,  and  must  often  result  in  a 
sensible  and  clearly  perceptible  reduction  of  the  quantity  in  the 
channel.  An  entire  diversion  of  a  water-course  by  an  upper  ri- 
parian proprietor,  (or  a  diversion  of  a  part  of  it,)  for  irrigation, 
without  restoring  to  the  channel  the  excess  of  the  water  not 
actually  consumed,  is  never  allowed.  Whether  or  not  a  diver- 
sion of  water  is  reasonable,  is  a  question  not  so  much  as  men- 
tioned by  any  writer  or  judge.  The  very  proposition  assumes 
the  right  of  the  proprietor  above  to  use  the  water  for  his  own 
purposes,  to  the  exclusion  of  the  proprietors  below, — a  proposi- 
tion inconsistent  with  the  doctrine  universally  admitted,  that 
all  proprietors  have  the  same  rights."  In  the  same  case,  after 
an  elaborate  review  of  the  authorities  upon  this  question,  the 
court  sums  up  its  conclusions  as  follow's:  "The  reasonable  use- 
fulness of  a  quantity  of  water  for  irrigation  is  always  relative. 
It  does  not  depend  on  the  convenience  of  or  profitable  results 
to  the  particular  proprietor,  but  upon  the  reasonable  use,  ref- 
erence being  had  to  the  needs  of  all  the  other  proprietors  on 
the  stream.  It  depends,  in  other  words,  on  all  the  circum- 
stances. We  anticipate  the  objection  that  this  is  not  an  abso- 
lute rule  at  all;  but,  as  said  by  the  judges  in  the  oj^inions 
quoted  from,  the  very  nature  of  the  common  right  is  such  that 
a  precise  rule  as  to  what  is  reasonable  use  by  any  one  proprietor 
poM.Rip.— 17  (257) 


§    144  IRRIGATION.  [Ch.  8. 

for  irrigation  cannot  be  laid  down.  A  stream  may  be  so  small 
that  any  use  for  irrigation  may  deprive  all  the  others  of  any  like 
use;  and  the  same  may  be  true  of  a  larger  stream,  where  the 
use  is  by  several  of  a  large  number  of  proprietors.  The  effect 
might  be  that,  while  there  might  be  sufficient  water  to  supply 
several  for  irrigation,  there  would  not  be  enough  for  all,  and  so 
all  might  be  deprived  of  the  benefit.  But  the  private  interests 
of  all  would  in  most  cases,  if  not  in  every  case,  lead  to  an 
avoidance  of  the  supposed  evil.  It  is  not  to  be  doubted  that  the 
riparian  proprietors  would  settle  by  convention  upon  a  plan  by 
which  each  could  secure  a  reasonable  use  for  irrigation  pur- 
poses; as  by  authorizing  each  to  stay  the  flow  at  recurring  pe- 
riods, or  otherwise  distributing  it  for  their  mutual  and  common 
benefit.  The  right  of  the  riparian  proprietors  to  a  reasonable 
use  of  the  water  of  the  stream  for  purposes  of  irrigation  is  rec- 
ognized in  many  of  the  California  cases  hereinbefore  referred 
to.''i] 

§  144.     Surplus  water  must  be  restored. 

[Where  a  riparian  owner  diverts  the  water  of  the  stream  for 
the  purpose  of  irrigation,  without  returning  the  surplus  into 
the  natural  channel,  whereby  the  owner  of  land  below,  en- 
titled to  use  the  water  in  the  same  manner,  is  deprived  of  his 
privilege,  an  action  lies.^] 

iLux  V.  Haggin,  (Cal.)  10  Pac.  ^Anthony  v.  Lapham,  5Pick.  175; 
Rep.  763.  Cook  v.  Hull,  3  Pick.  269;  Blanch- 

ard  V.  Baker,  8  Me.  253. 
(258; 


Ch,  9.]  SUGGESTIONS   FOR   LEGISLATION.  §    145 

CHAPTER  IX. 

SUGGESTIOIs^S  FOR  LEGISLATION  01^"  RIPAEIAK  RIGHTS. 

§  145.  Need  of  statutory  regulation. 

146.  Irrigation — Common-law  rules  inadequate. 

147.  Contents  of  proposed  statute. 

148.  Essential  nature  of  projected  law. 

149.  Sj'stem  of  crce^^fu^s  impracticable. 

150.  Colorado  system  criticised. 

151.  Legislation  must  respect  natural  laws  and  natural  rights. 
153.  Natural  rights  and  advantages  of  riparian  owners. 

153.  Legislation  should  recognize  these  rights. 

154.  Jurisdiction  of  equity, 

155.  Legislation  to  the  same  end. 

156.  Provision  for  non-riparian  lands. 

157.  Condemnation  of  stream  for  public  use. 

158.  Whether  irrigation  is  a  public  use. 

159.  Eminent  domain. 

160.  Summary  of  suggestions  concerning  legislation. 

161.  Concluding  observations. 

§  145.     Need  of  statutory  regulation. 

In  concluding  our  discussion  upon  water-rights  in  the  Pacific 
communities,  we  purpose  to  offer  a  few  observations  or  sugges- 
tions concerning  the  legislation  which  should  be  enacted  in  the 
states  of  California  and  Nevada  for  the  more  complete  regula- 
tion and  protection  of  these  rights.  We  have  already  given  a 
full  synopsis  of  the  statutory  systems  adopted  in  all  the  other 
states  and  territories  of  the  Pacific  coast  embraced  within  our 
general  review;  and,  as  before  stated,  we  shall  enter  into  no  dis- 
cussion of  these  statutes.  As  those  states  and  territories  become 
more  settled  by  an  agricultural  population,  the  practical  effect 
of  their  legislative  methods  will  become  known,  and  some  satis- 
factory judgment  can  be  formed  as  to  their  efficacy.  At  present 
any  discussion  of  them  might  be  regarded  as  speculative,  al- 

•      (259) 


§    146  SUGGESTIONS   FOR   LEGISLATION.  [Cll.  9. 

though  the  results  which  they  must  inevitably  produce  are,  in  our 
opinion,  perfectly  clear.  Confining  ourselves,  therefore,  to  the 
two  states  of  California  and  Nevada,  if  we  are  correct  in  our  con- 
clusions concerning  the  rights  of  private  riparian  proprietors 
upon  natural  streams,  and  especially  upon  their  right  to  use  the 
waters  thereof  for  purposes  of  irrigation,  it  is  plain  that  some 
legislation  is  needed,  not  to  define  and  establish  the  rights,  but 
to  protect  and  regulate  their  exercise  within  certain  limits. 

§  146.     Irrigation — Common-la-w^   rules   inadequate. 

Assuming  as  true,  what  we  think  has  been  sliown  to  be  estab- 
lished by  judicial  authority,  that  the  general  common-law  doc- 
trines on  the  subject  appl}'  to  and  determine  the  rights  of  pri- 
vate riparian  proprietors,  those  doctrines  are  suflEicient  of  them- 
selves to  regulate  the  use  of  water,  by  private  riparian  proprie- 
tors, for  all  other  ordinary  purposes  except  that  of  irrigation. 
The  common-law  rules  concerning  the  use  of  water  for  milling 
and  manufacturing  purposes,  and  for  all  those  purposes  termed 
"natural," — domestic  and  household  consumption,  and  me  wa- 
tering of  stock, — are  simple,  plain,  equitable,  and  just.  No- 
fault  has  ever  been  found  with  their  practical  operation;  they 
are  suited  to  all  communities  and  circumstances;  no  legislation 
is  needed  to  render  them  effective;  any  legislation  interfering 
with  their  free  control  would  be  injurious.  With  irrigation  the 
case  is  otherwise.  The  use  of  the  waters  of  natural  streams  for 
irrigation  is,  in  many  respects,  the  most  important  of  all  possi- 
ble uses,  in  these  states.  Without  irrigation  the  agricultural 
resources  of  the  soil  cannot  be  developed;  with  a  sufficient  sup- 
ply of  water  for  irrigation,  there  are  hardly  any  accessible  por- 
tions of  these  states  which  cannot  be  made  profitably  productive. 
The  problem  is,  to  benefit  as  large  a  portion  of  the  agricultural 
population  as  possible,  by  affording  the  means  of  irrigating  their 
lands,  without  invading  and  violating  the  private  natural  rights 
(260; 


€h.   9.]  SUGGESTIONS    FOR    LEGISLATION.  §   147 

of  any  class  of  jaroprietors.  The  use  of  water  for  purposes  of 
irrigation  is  practically  unknown  to  the  connnon-law.  While 
the  equitable  principles  of  the  common  law  may,  without  any 
alteration,  comprehend  the  use  of  water  for  purposes  of  irriga- 
tion, yet  the  special  rules  developed  by  common-law  courts  from 
those  principles  have  not  dealt  with  irrigation.  In  applying 
these  established  doctrines  of  the  common  law  to  the  use  of  wa- 
ter for  irrigation,  the  aid  of  statutory  legislation  is  clearly  needed. 
If  the  rights  of  the  private  riparian  proprietors  upon  the  same 
stream  to  use  its  water  for  irrigation  were  correctly  stated  in  our 
last  chapter,  it  is  plain  that  some  practical,  simple,  and  com- 
prehensive method  is  necessary  to  settle  authoritatively  the  rel- 
iitive  rights  of  all  the  proprietors  upon  any  j^articular  stream, 
iind  the  relative  amounts  or  proportionate  quantities  of  its  water 
which  they  are  all  entitled  to  take  and  consume.  The  general 
•doctrine  that  each  is  only  entitled  to  the  excess  over  and  above 
that  •which  all  the  others  are  entitled  to  take,  is  simply  the 
foundation.  How  that  excess  is  to  be  actually  ascertained  and 
apjjortioned  to  each  riparian  proprietor  before  he  takes  the  water 
from  the  stream,  is  the  difRculty;  and  it  is  a  difficulty  which  can 
only^be  obviated  by  statutory  legislation. 

§  147.     Contents  of  proposed  statute. 

Adopting  the  equitable  doctrines  of  the  common  law  as  its 
basis,  the  sole  purpose  of  the  legislation  should  be  to  furnish  a 
practical  mode  by  which  these  doctrines  can  be  applied  to  the 
use  of  water  for  the  irrigation  of  lands.  To  this  end  the  provis- 
ions of  the  statute  should  not  consist  of  vague  generalities,  merely 
defining  some  general  rights,  and  leaving  all  the  practical  work- 
ing and  effects  of  the  system  to  be  settled  by  a  long  series  of  ju- 
dicial decisions.  They  should  be  detailed,  specific,  and  minute. 
The  statute  should  be  most  carefully  drawn  so  as  to  provide  a 
plain,  certain,  inexpensive,  and  practical  system  regulating  the 

(261) 


§    1-18  SUGGESTIONS    FOR    LEGISLATION.  [Ch.  9. 

exercise  by  every  riparian  proprietor  upon  any  stream  of  his 
right  to  use  the  waters  thereof  for  purposes  of  irrigation;  deter- 
mining the  relative  amounts  of  the  water  to  which  all  of  the 
proprietors  are  entitled  under  every  condition  of  circumstances; 
the  proportionate  amounts  when  the  whole  flow  of  the  stream  is 
not  sufficient  to  furnish  a  full  supply  to  all;  the  times  and  order 
in  which  the  water  may  be  taken;  and  all  other  similar  matters. 
The  statutory  provisions  should  be  so  clear  and  definite  that 
there  could  be  no  reasonable  doubt  as  to  the  extent  of  each 
proprietor's  right  under  any  ordinary  circumstances;  and  they 
should  give  a  simple  and  effective  means  of  enforcing  these  rights 
and  regulating  their  exercise,  through  the  interpretation  of  local 
agents  or  officials  representing  the  whole  body  of  riparian  pro- 
prietors upon  any  particular  stream,  without  the  necessity  of  a 
resort  to  the  courts,  and  to  actions  for  damages  or  for  injunc- 
tions, as  the  only  means  of  protecting  the  rights  or  preventing 
their  invasion. 

§  148.     Essential  nature  of  projected  la'W. 

Without  dwelling  any  further  upon  its  external  form,  we  pro- 
ceed at  once  to  the  most  important  inquiry,  what  should  be  the 
essential  nature  of  this  legislation?  We  submit,  as  its  funda- 
mental conception,  that  such  legislation  should  recognize,  be 
founded  on,  and  carry  out  natural  laws  and  natural  rights.  Any 
attempt  to  violate  natural  and  economic  laws  and  rights,  to  con- 
fer a  supposed  benefit  upon  certain  classes  of  persons  by  legisla- 
tion which  invades  and  abrogates  the  natural  rights,  resulting 
from  natural  and  economic  laws,  held  by  other  persons,  must 
be  injurious  to  society  as  a  whole,  and  can  produce  no  real  good 
to  any  portion  of  it.  In  the  second  place,  the  legislation  should 
interfere  as  little  as  possible  with  existing  and  established  pri- 
vate rights  of  property.  Numerous  private  riparian  proprietors 
are  located  upon  nearly  all  the  important  streams  in  this  state; 
(262; 


Ch.   9.]  SUGGESTIONS    FOR    LEGISLATION.  §    149 

the  lands  upon  the  banks  of  some  of  these  streams  are  probably 
all,  or  nearly  all,  held  by  private  owners.  The  rights  of  all 
these  proprietors  are  recognized  and  established  by  the  existing 
law  of  the  state  as  incident  to  or  a  part  of  their  property.  These 
rights  should  not  be  disregarded.  An  attempt  to  do  so  would 
be  grossl}^  unjust,  and  could  only  produce  confusion  and  wrong. 
Finally,  it  is  a  principle  of  universal  application  that  new  laws, 
and  most  especially  new  statutes,  should  be  based  upon  notions 
and  conceptions  with  wdiich  the  people  are  familiar;  they  should 
reflect  the  customary  and  popular  customs,  habits  of  thought, 
and  institutions. 

§  149.     System  of  acequias  impracticable. 

If  the  foregoing  general  principles  of  legislation  are  accepted 
and  followed,  it  is  plain  that  the  public  system  of  "acggwias"  which 
prevails  in  New  Mexico  and  Arizona  would  be  utterly  impracti- 
cable and  impossible  in  California  and  Nevada.  By  that  sys- 
tem, it  will  be  remembered,  there  is  not,  and  cannot  be,  any 
private  property  rights  in  natural  streams  and  lakes.  All  such 
waters  are  public,  free  to  the  use  of  all  occupants  of  land  for  the 
purpose  of  irrigation.  No  person  can  appropriate  the  water  of 
a  stream  even  for  the  purpose  of  milling.  The  irrigating  canals 
or  ^'acequias^^  are  maintained  by  the  public,  at  the  public  ex- 
pense, and  are  controlled  by  the  local  authorities.  It  is  enough 
to  say  of  this  system,  which  is  borrowed  from  the  Spanish-Mex- 
ican laws,  that  it  is  utterly  foreign  to  the  habits  of  thought,  cus- 
toms, modes  of  legislation,  and  institutions  of  our  people;  and  its 
adoption  would  violate  all  of  the  established  rights  of  private 
riparian  proprietors  as  recognized  by  the  existing  law  of  the 
state.  It  is  hardly  probable  that  any  one  would  seriously  ad- 
vocate the  introduction  of  this  type  of  legislation. 

(263) 


§    150  SUGGESTIONS    FOR    LEGISLATION.  [Ch.   9. 

§  150.     Colorado  system  criticised. 

It  lias,  liowever,  been  strenuously  urged  that  the  Colorado  sys- 
tem of  defining  and  regulating  water-rights,  which  virtually  pre- 
vails in  Montana,  Idaho,  and  other  territories,  and  of  which  a 
detailed  account  was  given  in  a  previous  chapter,  should  be 
adopted  by  the  legislation  of  California.  We  do  not  think  that 
any  intelligent  lawyer  or  statesman,  or  careful  student  of  politi- 
cal economy,  who  was  familiar  with  the  results  of  legislation, 
and  with  the  enforcement  of  statutes  creating  hostile  and  con- 
flicting interests,  could  recommend  the  adoption  of  this  Colo- 
rado system.  In  order  to  understand  what  this  legislation  re- 
ally is,  tlie  reader  must  consult  the  detailed  synopsis  of  the 
statutes  given  in  a  former  chapter;  it  will  be  sufficient  now  to 
state  its  essential  and  fundamental  notions.  It  utterly  disre- 
gards all  natural  laws  and  the  natural  rights  arising  from  the  posi- 
tion of  those  who  own  lands  situated  directly  upon  the  banks  of 
streams.  It  places  persons  owning  land  at  any  distance  from  a 
stream  upon  exactly  the  same  footing  of  right  to  its  water  with 
those  who  own  land  upon  its  very  banks.  Its  fundamental  idea 
is  that  prior  appropriation  from  any  stream  by  any  one,  irre- 
spective of  his  location,  or  his  prior  possession  or  ownership,  con- 
fers an  absolute  supremacy  of  right  to  use  and  divert  its  water; 
so  that  a  proprietor  who  has  for  years  owned  land  on  the  banks 
of  a  stream,  but  has  not  constructed  a  ditch  by  which  to  divert 
and  use  its  water,  shall  be  subordinate  to  any  person  who  makes 
a  prior  actual  appropriation  for  the  benefit  of  his  lands,  how- 
ever distant  from  the  stream.  It  virtually  permits  an  unlim- 
ited invasion  of  private  lands,  for  the  purpose  of  constructing 
and  maintaining  ditches  across  them  by  which  to  carry  water. 

As  Colorado  and  these  territories  become  more  fully  settled, 
especially  by  an  agricultural  population,  this  system  of  water 
regulation  will  inevitably  give  rise  to  an  enormous  amount  of 
(264) 


■Ch.   9.]  SUGGESTIONS    FOR   LEGISLATION.  §    151 

trouble,  controversy,  and  litioation.  It  is  impossible  to  con- 
ceive of  legislation  tending  more  than  this  to  create  strifes, con- 
flicts, and  breaches  of  the  peace.  The  right  of  prior  appro- 
jDriation  on  the  public  streams  was  a  most  fruitful  cause  of  liti- 
gation in  California,  as  is  shown  by  the  great  number  of  re- 
ported cases;  but  this  is  a  feeble  illustration  of  the  litigation  and 
^controversy  which  must  arise  from  the  statutes  of  Colorado  and 
of  the  various  territories  when  they  come  into  full  operation 
upon  an  increasing  population. 

§  151.     Legislation  must  respect  natural  la"ws  and 
natural  rights. 

No  legislation  can  be  just  or  practicable,  or  can  tend  to  the 
peace  and  prosperity  of  society,  which  attempts  to  violate  and 
•override  natural  laws  and  natural  rights, — the  immutable  truths 
which  exist  in  the  regular  order  of  nature.  No  matter  what 
may  be  its  motive,  although  enacted  for  the  assumed  purpose  of 
benefiting  certain  classes  of  society,  legislation  which  disregards 
natural  laws,  justice,  and  rights  not  only  produces  evil  to  so- 
ciety as  a  whole,  but  even  injures  the  very  classes  it  was  de- 
signed to  benefit.  There  is  much  in  the  general  legislation  of 
California  which  demonstrates  the  truth  of  this  principle.  A 
most  instructive  essay  might  be  written  upon  this  topic,  which 
would  conclusively  show  the  injurious  results  of  many  Califor- 
nia statutes  which  violate  natural  laws,  and  economic  truths  and 
rights  based  upon  natural  justice, — results  which  bear  most 
heavily  upon  the  very  classes  whose  interests  were  intended  to 
be  promoted.  We  cannot  refrain  from  illustrating  this  most 
momentous  ])rinciple  of  economic  laws  by  a  single  example. 
The  legislation  of  California,  in  dealing  with  the  relations  of 
debtor  and  creditor,  leans  very  strongly  in  the  supposed  favor  of 
the  debtor  class.  This  leaning  is  shown  in  a  very  remarkable 
manner  in  the  statute  of  limitations.     There  is  probably  no 

(265) 


§    151  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9. 

Other  civilized  country  in  the  world,  except  perhaps  some  states 
or  territories  which  have  copied  the  California  statutes,  which 
prescribes  such  extremel}-  short  periods  of  limitation  within 
which  rights  of  action  are  barred.  Every  lawyer  of  intelli- 
gence is  familiar  with  the  analogous  statutes  in  England  and  in 
most  of  the  American  states,  and  can  make  the  comparison  with 
our  own.  These  extremely  short  periods  which  seem  to  abridge 
the  creditor's  rights,  were  enacted  with  the  supposition  that  the 
debtor  class  would  be  benefited  thereby.  What  is  the  actual 
effect?  There  is  no  other  state  in  the  Union  where  the  laws  are 
practically  so  hard  against  debtors  in  the  enforcement  of  claims 
as  in  California;  there  is  no  other  state  where  the  debtor's  prop- 
erty is  so  constantly  and  necessarily  sacrificed  on  judgments  and 
executions. 

Under  these  statutes  of  limitation,  and  the  decisions  constru- 
ing them,  a  creditor,  however  well  disposed  and  however  will- 
ing to  favor  his  debtor,  cannot  be  lenient,  cannot  give  terms. 
Any  leniency  on  his  part  is  simply  rendered  impossible  by  the 
statute  which  would  bar  and  destroy  his  claim  by  a  brief  period 
of  inaction.  However  worthy,  honest,  and  industrious  the 
debtor  may  be,  or  however  unfortunate  he  may  have  been,  his 
creditor  cannot  stay  his  hand  except  at  the  risk  of  entirely  los- 
ing the  demand.  The  creditor  must  foreclose  his  mortgage 
within  the  brief  statutory  period,  no  matter  at  how  great  a  loss 
for  the  debtor;  he  must  sue  and  obtain  judgment,  and  must 
seize  and  sell  the  debtor's  property  on  execution,  no  matter  at 
how  great  a  sacrifice.  In  other  states  a  creditor  can  be  lenient 
without  risk  to  himself;  he  can  wait  for  years,  so  that  an  hon- 
est, industrious,  or  unfortunate  debtor  may  recover  himself,  be- 
cause his  mortgage  remains  good  for  twenty  years,  his  judgment 
continues  to  be  an  effective  security  for  ten  years,  and  his  debt, 
whatever  may  be  its  form,  is  not  barred  within  six  years.  But 
the  legislature  of  California,  acting  in  the  supposed  interests  of 
(266) 


Ch.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §    152 

the  debtor  class,  has  made  it  simply  impossible  for  a  creditor 
to  be  lenient,  and  has  exposed  the  debtor  to  a  greater  risk  of 
loss  and  sacrifice  of  property  than  results  from  the  laws  of  any 
other  state,  except  those,  if  any,  which  have  copied  the  Cali- 
fornia statutes. 

This  is  only  a  single  example,  but  it  well  illustrates  a  princi- 
ple which  is  universal.  The  truth  is  established,  not  only  by 
the  most  convincing  a  priori  reasoning,  but  by  general  experi- 
ence, that  legislation  which  disregards  natural  laws  and  rights 
must  work  injury  to  society.  The  various  classes  of  society  are 
so  connected  that  no  large  class  can  be  injured  without  injury 
to  all. 

§  162.     Natural  rights  and  advantages  of  riparian 
o^wners. 

The  laws  of  nature  certainly  give  a  natural  right  and  advan- 
tage, from  their  superiority  of  position,  to  those  who  own  land 
lying  on  the  banks  of  natural  streams.  It  is  an  undeniable /aci 
that  such  proprietors  have  a  natural  right  as  compared  with 
those  who  own  land  at  a  distance  from  streams.  Legislation 
which  disregards  this  fact — which  attempts  to  deprive  the  one 
class  of  their  natural  right  and  advantage,  and  to  confer  the 
same  right  and  advantage  upon  the  other — is  necessarily  im- 
practicable; it  cannot  work  successfully;  it  is  essentially  unjust, 
and  can  only  produce  wrong.  Statutes,  however  elaborate  and 
detailed,  which  invade  natural  rights,  and  violate  the  sense  of 
natural  justice,  must  be  the  occasion  of  unlimited  confusion, 
strife,  contention,  and  litigation;  nothing  can  be  settled  and  es- 
tablished by  them.  The  common-law  doctrines  recognize  and 
protect  this  natural  right  and  ad-vantage  of  the  private  riparian 
proprietor;  they  regard  it  as  a  fact  which  cannot  be  denied  nor 
overcome,  and  they  build  all  of  their  specific  rules  upon  it  as  a 
foundation. 

(267) 


^    154  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9. 

A  similar  natural  advantage  is  connected  with  landed  owner- 
ship in  many  other  respects.  Those  who  own  fertile  and  pro- 
ductive lands  have  an  enormous  natural  superiority  over  those 
proprietors  whose  lands  are  wholly  situated  in  Imrren  and  un- 
productive soils  and  regions.  Is  this  any  just  ground  for  legis- 
lation which  would  authorize  the  latter  class  to  invade  the  pos- 
sessions of  the  former,  and  to  deprive  them  of  some  portion  of 
their  more  valuable  property?  Those  who  own  land  upon  which 
there  is  a  supply  of  forest  trees,  have  a  great  natural  advantage 
over  those  whose  lands  are  entirely  devoid  of  timber.  Is  this 
any  just  ground  for  statutes  enabling  the  latter  to  claim  and  ap- 
propriate a  portion  of  the  timber  land  belonging  to  the  former? 
The  use  of  the  stream,  and  of  the  water  flowing  through  it,  forms 
a  part  of  the  rights  incident  to  and  involved  in  the  ownership 
of  the  lands  upon  its  borders.  This  is  the  principle  recognized 
by  the  common  law,  and  which  should  be  recognized  by  any 
auxiliary  legislation.  It  is,  moreover,  a  natural  law,  an  inevita- 
ble fact,  which  no  legislation  can  change.  Any  statute  denying 
this  fact  simply  attempts  an  impossibility. 

§  153.    Legislation  should  recognize  these  rights. 

It  results  from  the  foregoing  positions  that  any  legislation, 
in  order  to  be  just  and  practicable,  should  primarily  recognize, 
maintain,  and  protect  the  water-rights,  and  especially  the  right 
to  use  the  water,  for  purposes  of  irrigation,  of  all  the  private  ri- 
parian proprietors  owning  lands  abutting  on  either  bank  of  any 
natural  stream  throughout  its  entire  course. 

§  154.     Jurisdiction  of  equity. 

We  have  no  doubt  that  equity  has  full  jurisdiction  over  all 
the  private  riparian  proprietors  upon  any  given  stream,  to  de- 
termine their  individual  rights,  and  to  furnish  a  perpetual  means 
for  the  protection  and  enforcement  of  those  rights.     A  very  re- 
(268) 


Ch.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §    154 

markable  case,  which  came  within  our  personal  knowledge  sev- 
eral years  ago,  furnishes  a  most  striking  illusti'ation  of  the  j>/-m- 
ciple  which  underlies  this  equitable  jurisdiction.^ 

In  the  early  settlement  of  the  city  of  Rochester,  on  the  Gen- 
esee river,  in  western  New  York,  a  gentleman  named  Browii 
owned  the  bed  of  the  Genesee  river  immediately  above  the  main 
falls, — a  perpendicular  fall  nearly  one  hundred  feet  high  within 
the  limits  of  the  city, — and  also  a  strip  of  land  extending  from 
these  falls  along  the  west  bank  of  the  river  for  a  mile  or  more. 
He  built  a  dam  across  the  river  a  few  rods  above  the  falls,  and 
constructed  a  mill  race  or  canal  leading  from  this  dam  about  a 
mile  down  the  river,  on  its  west  side,  parallel  to  and  a  few  hun- 
dred feet  from  the  river  bank,  which  was  through  this  whole 
length  a  perpendicular  cliff  nearly  one  hundred  feet  high.  One 
of  the  finest  water-powers  in  the  country  was  thus  obtained  and 
utilized.  The  space  between  this  mill  canal  and  the  west  bank 
of  the  river  he  divided  into  a  large  number  of  mill  lots,  perhaps 
one  hundred  in  all,  varying  in  width,  each  abutting  at  its  front 
end  on  the  mill  canal,  and  at  its  rear  end  on  the  perpendicular 
bank  of  the  river.  These  lots,  together  with  the  right  to  draw 
a  certain  amount  of  the  water  from  the  mill  canal,  were  from 
time  to  time  conveyed  in  fee  to  different  grantees,  each  grantee 
covenanting  to  use  only  the  amount  of  water  specified  in  his 
deed  of  conveyance.  In  process  of  time,  all  the  lots  had  thus 
been  sold  and  conveyed  in  fee,  and  Brown,  the  original  owner, 
retained  no  interest  whatever  in  the  property.  A  continuous 
line  of  mills  and  manufactories  had  been  built  on  these  lots 
along  the  bank  of  the  river;  many  of  the  lots  had  passed  to 
subsequent  grantees;  and  there  were  perhaps  one  hundred  dif- 


^The  principle  is  the  avoiding  a  of  law  and  the  same  questions  of 

multiplicity  of  suits  by  quieting  facts.     See  the  discussion  of  thi» 

the  titles  of  numerous  parties  when  principle  in  1  Pom.  Eq.  §§  255-275. 
they  all  depend  upon  the  same  rule 

(269) 


§    154  SUGGESTIONS    FOR    LEGISLATION.  [Cll.  9. 

ferent  proprietors  of  mill  lots,  all  holding  under  the  original  con- 
veyances from  Brown.  There  was,  of  course,  no  privity  of  con- 
tract Ix'twcen  these  various  grantees  and  lot-owners,  and  since 
Brown  had  conveyed  each  lot  in  fee,  and  had  retained  no  re- 
versionary interest  whatever,  there  was  no  privity  of  estate  among 
the  various  grantees  and  proprietors  of  different  mill  lots.  When 
the  Genesee  river  was  high,  there  was  an  ample  supply  of  water 
for  the  needs  of  all  the  mills  and  manufactories.  But  during  a 
large  portion  of  each  year,  while  the  natural  flow  of  the  river 
was  lessened,  the  supply  of  water  through  the  mill  canal  was 
diminished;  and  in  consequence  of  this  the  lot-owners  on  the 
upper  part  of  the  canal  diverted  and  consumed  more  of  the  wa- 
ter than  the  proportionate  amounts  to  which  they  were  entitled. 
This  practice  of  unlawful  consumption  was  carried  on  to  such 
an  extent  that  the  supply  of  water  was  largely  cut  off  from  the 
lots  on  the  lower  part  of  the  canal,  and  a  very  serious  loss  was 
therehy  occasioned  to  their  owners.  For  all  this  injury  there 
was  no  adequate  remedy  at  law.  In  this  condition  the  owner 
of  a  mill  at  the  lower  end  of  the  canal  brought  a  suit  in  equity, 
making  all  the  other  proprietors  and  occupants  of  mill  lots  bor- 
dering on  the  canal  defendants,  and  setting  out  facts  showing 
the  titles  and  water-rights  of  each  separate  and  individual  lot, 
for  the  purpose  of  obtaining  a  decree  establishing  and  quieting 
the  title  of  each  proprietor  on  the  canal  to  divert  and  use  the 
waters.  Such  a  decree  was  rendered.  It  established  the  right 
of  each  proprietor  to  use  the  proportionate  amount  of  water  con- 
veyed by  his  original  deed;  it  definitely  fixed  these  amounts; 
it  determined  the  number  of  feet  or  inches  of  w^ater  which  could 
be  drawn  from  the  canal  for  each  lot,  and  the  size  of  the  open- 
ing through  which  the  water  could  flow;  and  it  provided  for 
constructing  permanent  barriers  and  gates  for  each  lot,  by  means 
of  which  the  amount  drawn  from  the  canal  for  the  use  of  the  lot 
might  be  controlled  and  regulated.  In  order  to  make  the  de- 
(270) 


Ch.  9.]  '  SUGGESTIONS    FOR   LEGISLATION.  §    155 

cision  final  and  perpetual,  and  to  secure  and  protect  the  rights 
of  all  thus  determined,  the  decree  i^rovided  for  the  appointment 
and  maintenance  of  a  perpetual  commission,  representing  all  the 
proprietors  on  the  canal,  who  should  possess  the  power  to  in- 
sjiect  the  water  supply-gates  and  openings  of  each  lot,  and  to 
preserv-e  inviolate  the  water-rights  and  water  supply  of  each  lot 
as  they  had  thus  been  finally  established  by  the  decree  of  the 
court.  ^ 

It  is  true  the  stream  in  this  case  was  an  artificial  canal;  but, 
as  there  was  no  privity  of  contract  nor  of  estate  among  all  the 
different  lot-owners  on  the  canal,  their  relations  with  each  other, 
so  far  as  the  jurisdiction  of  equity  is  concerned,  were  virtu- 
ally the  same  as  those  which  subsist  between  the  different  pri- 
vate riparian  proprietors  U]3on  any  natural  stream.  The  prin- 
ciple is  the  same  in  both  cases.  We  have  no  doubt  that  on  the 
same  princij^le,  in  a  suit  brought  by  one  private  riparian  pro- 
prietor against  all  the  other  similar  proprietors  upon  any  given 
stream,  a  court  of  equity  might  establish  their  rights  as  among 
themselves  to  use  the  water  for  irrigation,  the  amounts  which 
each  could  divert,  and  the  order,  times,  and  seasons  of  his  di- 
version, and  might  appoint  a  perjDetual  commission,  represent- 
ing all  the  proprietors  on  that  stream,  which  should  have  power 
to  carry  into  effect  the  provisions  of  the  decree. 

§  155.  Legislation  to  the  same  end- 
Granting  this  to  be  within  the  jurisdiction  of  equity,  yet  the 
same  end  could  be  more  easily,  simply,  and  inexpensively  ac- 
complished by  appropriate  legislation.  We  have  referred  to 
the  jurisdiction  of  equity,  not  for  the  purpose  of  advising  a  re- 
sort to  it,  but  for  the  purpose  of  illustrating  more  plainly  the 

^This  case  exemplifies  in  the  equity  to  adapt  their  special  rem- 
clearest  manner  the  practically  edies  to  special  and  new  conditions 
unlimited     power    of    courts    of     of  fact. 

(271) 


§    155  SUGGESTIONS   FOR  LEGISLATION.  [Cll.  9. 

exact  object  sought  to  be  obtained  by  means  of  legislation. 
The  legislation  sliould  regard  all  the  jjrivate  riparian  proprietors 
owning  lands  abutting  on  eitlier  bank  of  any  given  natural 
streain  as  constituting  one  inciividual  community  for  the  pur- 
pose of  irrigation.  It  should  jjriinarlly  assert,  secure,  and  pro- 
tect tlie  equal  rights  of  all  the  members  of  this  community  to 
use  the  waters  of  that  stream  for  the  purpose  of  irrigation,  as 
rights  naturally  superior  to  those  held  by  all  other  classes  of 
land-owners.  It  should  declare,  in  the  clearest  manner,  the 
fundamental  principle  that  each  riparian  proprietor  is  only  en- 
titled to  use,  for  the  irrigation  of  his  own  land,  such  portion  of 
the  stream  as  is  the  excess  over  and  above  the  portions  which 
all  the  other  riparian  proprietors  upon  the  same  stream  are  en- 
titled to  use,  for  the  like  purpose,  on  their  own  lands;  and  the 
equally  fundamental  principle  that  other  persons  owning  land, 
not  situated  on  the  stream,  are  only  entitled  to  use,  for  the  irri- 
gation of  their  non-riparian  lands,  such  portion  of  the  waters  of 
the  stream  as  remain  in  excess  after  the  primary  needs  of  the  ri- 
parian jjroprietors  have  been  reasonably  satisfied.  To  protect 
and  enforce  the  rights  thus  declared,  the  legislation  should  pro- 
vide for  a  local  officer  or  commissioner,  or  small  board  of  com- 
missioners, chosen  in  some  manner  by  the  community  of  riparian 
proprietors.  It  should  be  the  duty  of  this  commissioner  or 
board  to  make  and  enforce  specific  rules  or  by-laws  concerning 
the  use  of  the  water  for  irrigation  by  the  individual  members 
of  the  community  of  riparian  proprietors,  and  also  to  determine 
the  amount  of  the  stream,  if  any,  remaining  over  and  above 
after  the  wants  of  the  riparian  proprietors  had  been  reasonably 
supplied,  and  which  could  be  appropriated,  if  required,  to  the 
irrigation  of  lands  at  a  distance  from  the  stream.  Into  the  de- 
tail of  these  specific  rules  or  by-laws  which  should  be  made  by 
the  local  commissioners  on  each  stream  we  shall  not  attempt  to^ 
enter.  They  must  necessarily  vary  with  the  size  and  character 
(272) 


Ch.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §   156 

of  the  streams,  and  should  be  adapted  to  all  the  possible  condi- 
tions of  fact.  Such  rules  could  easily  be  prepared  by  intelligent 
members  of  each  riparian  community,  who  were  familiar  with 
the  stream,  and  with  the  modes  of  husbandry  and  wants  of  the 
whole  community  residing  on  its  banks. 

§  156.     Provision  for  non-riparian  lands. 

Thus  far  our  i^roposed  legislation  has  dealt  alone  with  the  rights 
of  the  actual  riparian  proprietor  to  use  the  waters  of  a  stream 
for  the  irrigation  of  their  riparian  lands;  and  we  are  now  brought 
to  the  much  more  difficult  inquiry,  how  far  and  how  should  the 
legislation  provide  for  the  diversion  of  water  from  a  stream  for 
the  purpose  of  irrigating  lands  not  situated  on  its  banks, — lands 
belonging  to  owners  who  are  non-riparian,  but  which  may  need 
the  aid  of  irrigation  in  order  to  develop  their  full  capacity  for 
production,  or,  perhaps,  to  render  them  at  all  productive?  In 
many  of  the  smaller  streams  throughout  the  state  the  natural 
flow  of  water  is  so  limited  and  fluctuating  that  no  diversion 
could  be  made  to  supply  the  wants  of  other  land-owners  with- 
out thereby  infringing  u^jon  the  superior  rights  of  their  riparian 
proprietors.  This  class  of  small  streams  must,  it  seems,  be  left 
for  the  exclusive  use  of  those  who  possess  the  natural  advantage 
of  owning  lands  upon  their  banks.  Unless  this  be  so,  then  it 
should  be  carefully  observed  that  there  is  not  any  limit  whatever^ 
depending  upon  the  size  of  a  natural  stream ,  to  the  right  of  ap- 
propriation held  by  any  third  person;  any  third  person  would 
have  the  same  right  to  interpose  and  appropriate  the  waters  of  a 
natural  brook,  which  both  rises  and  flows  through  its  entire 
length  within  the  boundaries  of  any  land,  which  he  has  to  ap- 
propriate the  waters  of  a  somewhat  larger  stream  which  runs  for 
a  few  miles  through  or  between  the  lands  of  several  proprietors. 
This  simple  ilhistration  shows  the  absurdity,  as  well  as  the  in- 
poM.Rip. — 18  (273) 


§    157  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9, 

Justice,  of  carrying  the  doctrine  of  appropriation  to  its  logical 
results. 

But  the  larger  and  permanent  rivers  of  the  state,  the  San  Joa- 
quin, and  its  affluents  like  the  Merced,  the  Tuolumne,  the  Cal- 
averas, and  others  coming  down  from  the  heights  of  the  Sierras, 
and  the  Sacramento  with  its  similar  branches,  the  Bear,  the 
Yuba,  the  Feather,  and  others,  when  not  polluted  by  hydraulic 
mining,  if  reasonably  and  properly  controlled  and  utilized,  can 
certainly  furnish  an  adequate  and  constant  supply  of  water,  for 
the  purpose  of  irrigation,  to  vast  communities  of  land-owners  in 
addition  to  the  riparian  proprietors  upon  their  very  banks. 
And  irrigation  is  a  matter  of  such  paramount  importance  to  the 
agricultural  interests  of  California  that  legislation  should  add 
something  to  the  mere  common-law  doctrines,  for  the  benefit 
of  these  non-riparian  cultivators  of  the  soil.  The  problem  is, 
how  shall  the  needs  of  these  communities  of  land-owners  away 
from  the  large  streams — these  non-riparian  owners — be  provided 
for  and  satisfied,  consistently  with  the  natural  advantage  and 
primary  right  of  the  communities  of  riparian  proprietors?  The 
doctrine  of  unlimited  prior  appropriation,  which  obtains  on 
purely  puljlic  streams,  must,  as  we  have  seen,  be  rejected  as  both 
unjust  and  impracticable  in  its  application  to  these  private 
streams, — streams  bordered  by  private  ownership. 

§  157.     Condemnation  of  stream  for  public  use. 

The  question  first  arises  whether,  as  a  mode  of  solving  this 
problem,  the  legislature  should  provide  some  general  means  by 
which  any  community  or  neighborhood  of  distant,  non-riparian 
owners  may  appropriate  and  take  the  waters  of  a  convenient 
stream,  through  the  process  of  condemnation,  under  an  exercise 
of  the  right  of  eminent  domain,  upon  the  payment  of  a  just 
compensation  to  the  private  riparian  proprietors  on  the  banks 
of  such  stream  whose  property  has  been  taken  and  whose  pri- 
(274) 


Ch.  9.]  SUGGESTIONS    FOR   LEGISLATION.  §  157 

mary  rights  have  been  invaded?  This  method  of  obtaining  the 
Avater  of  a  stream  by  distant  land-owners  is  recognized  by  the 
California  statute  passed  in  1874,  quoted  in  a  former  chapter; 
but  that  statute  is  only  local  and  partial  in  its  application,  and 
it  lacks  the  detail  and  precision  essential  to  a  practical  system. 
Is  the  use  of  water  by  private  land-owners  for  the  irrigation 
of  their  lands  a  "public  use,"  within  the  settled  meaning  of  that 
term,  so  that  the  legislature  has  power,  under  the  constitution, 
to  authorize  the  taking  of  water  for  such  purpose,  by  the  right 
of  eminent  domain, — the  power  to  take  private  property  for  a 
public  use  upon  the  payment  of  a  just  compensation?  The 
fact  that  a  statute  declares  a  certain  use  to  be  a  public  one,  and 
authorizes  the  taking  of  private  property  for  it,  does  not  neces- 
sarily make  the  use  public,  nor  render  the  taking  of  private 
property  for  it  valid.  It  is  settled  by  unanimous  agreement  of 
authorities  that,  lohen  a  use  is  public,  the  decision  of  the  legisla- 
ture that  the  public  needs  require  the  taking  of  private  property 
to  promote  the  use  is  final  and  conclusive,  and  cannot  be  in- 
quired into  by  the  courts.  But  it  is  equally  well  settled  by 
courts  of  the  highest  authority  that  the  question  whether  a  given 
use  is  or  is  not  2mblic  is  a  judicial  one,  to  be  determined  by  the 
courts.  If  the  mere  declaration  of  the  legislature  that  a  certain 
use  is  public,  and  authorized  the  taking  of  private  property ,  were 
final  and  conclusive,  then  the  constitutional  guaranty  forbidding 
the  taking  of  private  property  except  for  public  use  would  be 
rendered  wholly  nugatory;  it  would  be  made  a  mere  empty 
form  of  words.  For  example,  if  a  statute  of  the  state  legisla- 
ture should  pronounce  a  certain  manufactory  carried  on  at  a  cer- 
tain town  to  be  a  public  use,  and  should  purport  to  authorize 
its  owners  to  take  private  property  for  their  own  purposes,  the 
courts  would  not  be  impeded  by  this  legislative  declaration,  but 
would  hold  the  statute  to  be  unconstitutional  and  void.  The 
following  points  concerning  the  use  of  natural  waters  for  various 

(275) 


§    157  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9. 

purposes  have  been  settled  by  the  courts:  The  supply  of  water 
to  the  inhabitants  of  a  city,  village,  or  town,  either  by  the  mu- 
nicipal authorities  themselves,  as  in  case  of  the  Croton  Water- 
Works  for  New  York  city,  or  by  a  corporation,  as  in  case  of  the 
Spring  Valley  Water  Company  for  San  Francisco,  is  clearly  es- 
tablished to  be  a  public  use.  The  ground  upon  which  this  con- 
clusion was  rested  is  that  a  water  supply  to  the  members  of  a 
community  is  necessary  to  promote  the  general  health  of  that 
community;  and  there  is  no  higher  or  more  evident  public  use 
than  the  public  health.  A  supply  of  water  for  drinking,  for 
washing  and  bathing,  and  for  all  other  domestic  purposes,  and  for 
flushing  sewers,  and  the  like,  tends  to  promote  the  general  pub- 
lic health  of  a  city  or  village  as  much  as  a  supply  of  i^ure  air. 
To  furnish  an  adequate  supply  for  such  purjjoses,  the  waters  of 
a  natural  stream  or  lake  may  therefore  be  condemned  upon  pay- 
ment of  just  compensation  to  those  whose  private  property  rights 
are  thereby  invaded.^ 

Again,  it  is  settled  that  the  draining  of  extensive  districts  of 
swampy,  marshy,  or  wet  lands  is  a  public  use,  and  that  private 
property  may  be  taken  for  such  drainage  works,  or  to  defray  the 
expense  of  their  construction  and  maintenance.  This  decision 
has  been  wholly  placed,  by  the  courts,  upon  the  ground  of  the 


*  [St.  Helena  Water  Co.  v.  Forbes,  the  city  would  have  to  acquire  that 

62  Cal.  182;  Smith  v.  Gould,  59  Wis.  prescriptive  right  as  it  did  the  oth- 

631,  s.  0.  18  N.  W.  Rep.  457.     A  er,  by  purchase  or  condemnation, 

city  which   has,  under  statutory  Baltimore  v.  Warren  Manuf'g  Co., 

authority,  acquired  riparian  prop-  59  Md.  96.     The  construction  and 

erty  by  purchase    or  condemna-  maintenance  of  a  public  canal  is  a 

tion,  and  erected  waterworks  for  public  purpose;  and  water  may  be 

the  purpose  of  supplying  the   in-  talien  for  that  purpose,  although 

habitants  with  water,  is,  like  any  the  mill-power  of   adjacent   ripa- 

other  riparian  proprietor,  entitled  rian  proprietors  is  thereby  injured 

to  have  upper  proprietors  enjoined  or  destroyed,  compensation  being 

from  polluting  the  stream,  unless  made.    Cooper  v. Williams,  4  Ohio, 

they  have  acquired  a  right  to  do  253.] 
BO  by  prescription,  in  which  case 

(276) 


€h.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §    158 

Lenefit  to  the  general  health  of  the  local  community  resulting 
from  the  drainage.  The  courts  have  most  distinctly  held,  in 
passing  upon  this  class  of  cases,  that  the  benefit  done  to  the  in- 
dividual owners,  the  enhancement  in  the  value  of  their  farms, 
the  increase  in  the  productions  of  their  lands,  and  the  like,  re- 
sulting from  the  system  of  drainage,  do  not  of  themselves  make 
such  works  a  public  use;  such  benefits  are  nothing  but  a  private 
use  more  or  less  multiplied.  The  public  health  alone  is  what 
gives  the  character  of  a  public  use  to  such  measures.  Again,  it 
is  settled  by  an  overwhelming  weight  of  authority  in  a  great  ma- 
jority of  the  states, — although  a  different  rule  prevails  in  a  few 
states,  the  eff'ect  of  local  customs, — that  the  propelling  of  mills, 
factories,  and  manufactories,  by  water  taken  from  natural  streams, 
is  in  no  sense  a  pu1)lic  use.  It  may  be  regarded,  as  the  result 
of  principle  and  authority,  that  anything  which  merely  benefits 
an  individual's  own  private  property;  which  merely  enhances 
its  value,  or  renders  it  more  productive  or  more  capable  of  cul- 
tivation,— is  not  a  public  use.  And  what  is  thus  essentially  a 
private  benefit  does  not  become  a  "public  use,"  simply  because 
a  large  number  of  individuals  may  enjoy  the  same  benefit  with 
respect  to  their  own  private  property.  Otherwise,  there  is  not 
a  single  trade,  business,  or  profession  that  is  not  a  "public  use" 
within  the  provision  of  the  constitution. 

§  158.     Whether  irrigation  is  a  public  use. 

Is,  therefore,  the  taking  of  water  from  natural  streams  for  the 
irrigation  of  the  lands  of  private  owners  a  public  use?  If  wa- 
ter should  be  thus  taken  by  one  person  alone  to  irrigate  his 
own  farm,  then,  under  the  doctrines  derived  both  from  principle 
and  from  the  authority  of  decided  cases,  the  use  would  clearly 
seem  to  be  private  and  not  public, — as  completely  private  as 
plowing,  sowing,  planting,  fencing,  ditching,  and   any  other 

(277) 


§    158  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9. 

means  by  wliich  the  land  is  improved,  its  value  enhanced,  or 
its  productiveness  increased  for  the  personal  and  immediate  ben- 
efit of  tlie  owner.  The  conclusion  would  seem  to  be  equally 
true,  if  water  is  taken  in  like  manner  by  several  separate  and 
detached  owners,  for  the  benefit  of  each  individual's  land.  But 
suppose  there  is  a  community  composed  of  numerous — say  50 
— different  landed  proprietors,  occupying  a  certain  well-defined 
tract  of  land,  containing  many  thousand  acres,  situated  at  a  dis- 
tance of  several  miles  from  a  large  stream,  and  so  located  topo- 
graphically that  all  the  farms  comprised  in  the  tract  could  be 
irrigated  by  means  of  one  main  canal  taking  water  from  that 
stream. 

This  supposition  presents  the  question  in  the  most  favorable 
light  possible,  and  it  certainly  and  fairly  represents  the  actual 
condition,  with  respect  to  the  needs  and  the  facilities  for  irriga- 
tion, in  many  parts  of  the  state.  Would  the  irrigation  of  the 
lands  belonging  to  the  members  of  this  community  be  a  public 
use,  so  that  they  would  be  authorized,  for  that  purpose,  to  ap- 
propriate and  condemn  the  waters  of  the  neighboring  stream, 
against  the  consent  of  the  private  riparian  proprietors  on  such 
stream?  The  question  is  a  very  difficult  one;  the  answer  to  it 
is  far  from  clear.  How  does  the  use  of  the  water  by  each  indi- 
vidual member  of  such  community  differ  in  kind  or  degree  from 
the  use  of  the  water  by  each  riparian  proprietor  on  the  stream? 
How  does  the  use  by  the  w^hole  community  differ  from  the  use 
by  the  entire  mass  of  riparian  proprietors?  How  is  the  use  by 
such  community  any  more  public  than  the  use  by  all  the  ri- 
parian proprietors  on  the  stream?  By  what  justice,  or  under 
what  principle  of  constitutional  law,  can  such  a  community, 
simply  because  it  occupies  a  tract  of  land  at  a  distance  from  the  stream^ 
deprive  the  community  living  on  the  stream  of  their  natural 
right  to  the  water,  when  the  uses  by  each  community  are  exactly  the 
(27  8  j 


Ch.   9.]  SUGGESTIONS   FOR   LEGISLATION.  §    158 

same?  For  it  should  be  remembered  that  the  right  to  appropri- 
ate and  condemn  the  water  of  a  stream  by  exercise  of  the  right 
of  eminent  domain,  if  it  exists  at  all,  is  absolutely  unlimited  as 
to  extent  and  quantity.  If  the  distant  community  may  con- 
demn any  portion  of  the  waters  of  a  stream,  against  the  consent 
of  the  riparian  proprietors  on  the  stream,  then  it  may  condemn 
and  appropriate  the  entire  body  of  the  water,  and  leave  none 
whatever  for  the  riparian  proprietors,  upon  the  payment  of  suf- 
ficient compensation.  Again,  how  should  the  compensation  be 
assessed  and  paid  in  any  such  case  of  condemning  partially  or 
wholly  the  waters  of  a  stream?  Every  riparian  proprietor  on 
the  stream  would  be  justly  entitled  to  some  compensation,  for 
the  rights  of  every  one  would  be  invaded.  Any  fair,  reason- 
able, and  just  assessment  of  the  damages  among  all  the  riparian 
proprietors  would  be  practically  impossible. 

These  are  some  of  the  difficulties  which  must  necessarily  at- 
tend any  scheme  for  the  condemnation  of  the  waters  of  a  natu- 
ral stream,  under  the  right  of  eminent  domain,  for  the  benefit         ^ 
of  communities  located  at  a  distance  from  the  stream. 

Whatever  measures  of  legislation  are  adopted,  the  natural       ^ 
rights  of  the  riparian  proprietors  on  the  streams  should,  as  we 
have  already  shown,  be  first  protected  and  their  exercise  regu-      >ii' 
lated.     Only  the  excess  of  the  water  remaining  unconsumed  after 
their  needs  have  been  reasonably  supplied  should  be  appro i^ri-      -f^- 
ated  to  the  use  of  distant  and  non-riparian  owners.     But  in  such       '^ 
a  case  there  is  no  necessity  for  any  resort  to  the  right  of  emi- 
nent domain,  to  the  condemnation  of  water,  nor  to  the  payment 
of  compensation.     Communities  of  owners  at  a  distance  fromx    ^x. 
the  larger  streams  should  be  entitled  to  reach  and  appropriate  j   3 
this  excess  of  their  waters  after  the  wants  of  the  riparian  propri-  /  i^ 
etors  are  reasonably  satisfied,  without  any  condemnation  or  pay-      i 
ment  of  compensation,  since  such  a  use  would  not  substantially  ">^\; 
afiect  any  rights  held  by  the  riparian  proprietors  on  the  streams,    i 

(279)        ^ 


§    159  SUGGESTIONS    FOR   LEGISLATION.  [Ch.  9. 

§  159.     Eminent  domain. 

[It  seems  very  clear,  upon  the  authorities,  that  riparian  own- 
ers liave  a  vested  right  in  the  benefits  and  advantages  arising 
from  their  adjoining  the  water,  of  which  they  cannot  be  de- 
prived without  compensation.^  But  that,  under  proper  condi- 
tions, a  water-course  may  be  taken  under  the  jDower  of  eminent 
domain,  for  the  irrigation  of  the  surrounding  country,  seems  to 
be  plainly  indicated  by  the  decision  in  Lux  v.  Haggin,^  that 
"the  riparian  owner's  property  in  the  water  of  a  stream  may  (on 
payment  of  due  compensation  to  him)  be  taken  to  supply  farm- 
ing neighborhoods  with  water."  "It  is  apparent,  "said  the  court, 
"that  in  deciding  whether  a  use  was  public  the  legislature  was 
not  limited  by  the  mere  number  of  persons  to  be  immediately 
benefited,  as  opposed  to  those  from  whom  property  is  to  be 
taken.  It  must  haj^pen  that  a  public  use  (as  of  a  particular 
wagon  or  railroad)  will  rarely  be  directly  enjoyed  by  all  the 
denizens  of  the  state,  or  of  a  county  or  city,  and  rarely  that  all 
within  the  smallest  political  subdivision  can,  as  a  fact,  imme- 
diately enjoy  every  public  use.  Nor  need  the  enjoyment  of  a 
public  use  be  unconditional.  A  citizen  of  a  municipality  to 
which  Avater  has  been  brought  by  a  person  or  corporation  which, 
as  agent  of  the  government,  has  exercised  the  power  of  eminent 
domain,  can  demand  water  only  on  payment  of  the  established 
rate,  and  on  compliance  with  reasonable  rules  and  regulations. 
And  while  the  court  will  hold  the  use  private  where  it  appears 
that  the  government  or  public  cannot  have  any  interest  in  it,  the 
legislature,  in  determining  the  expediency  of  declaring  a  use 
public,  may,  no  doubt,  properly  take  into  the  consideration  all 
the  advantages  to  follow  from  such  action;  as  the  advancement 

»Bell  V.  Gough,  3  Zabr.  624;  535.  See  Commissioners  of  Homo- 
Trenton  Water  Co.  v.  Eaflf,  36  N.  chitto  River  v.  Withers,  29  Miss.  21. 
J.Law,335;Munroev.Ivie,2Utah.         210  Pac.    Rep.   697,    construing 

Code  Civil  Proc.  Cal.  1238. 
(280) 


Ch.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §   159 

of  agriculture,  the  encouragement  of  mining  and  the  arts,  and 
the  general,  though  indirect,  benefits  derived  to  the  people  at 
large  from  the  dedication.  *  *  *  The  words  '  farming  neigh- 
borhoods' are  somewhat  indefinite.  The  idea  sought  to  be  con- 
veyed by  them  is  more  readily  conceived  than  put  into  accurate 
language.  Of  course,  'farming  neighborhood'  implies  more 
than  one  farm;  but  it  would  be  difficult  to  say  that  any  certain 
number  is  essential  to  constitute  such  a  neighborhood.  The 
vicinage  may  be  nearer  or  more  distant,  reference  being  had  to 
the  populousness  or  sparseness  of  population  of  the  surrounding 
country;  but  the  farmers  must  be  so  near  to  each  other — rela- 
tively to  the  surrounding  settlers — as  to  make  what  in  popular 
parlance  is  known  as  a  'farming  neighborhood.'  A  very  exact 
definition  of  the  word  is  not,  however,  of  paramount  impor- 
tance. The  main  purpose  of  the  statutes  is  to  provide  a  mode 
by  which  the  state,  or  its  agent,  may  conduct  water  to  arable 
lands  where  irrigation  is  a  necessity,  on  payment  of  due  com- 
pensation to  those  from  whom  the  water  is  diverted.  The  same 
agent  of  the  state  may  take  water  to  more  than  one  farming 
neighborhood.  It  must  always  be  borne  in  mind  that  under 
the  Codes  no  man,  or  set  of  men,  can  take  another's  property 
for  his  own  exclusive  use.  Whoever  attempts  to  condemn  the 
private  right  must  be  prepared  to  furnish  (to  the  extent  of  the 
water  he  consumes  and  pays  for)  every  individual  of  the  com- 
munity or  communities,  farming  neighborhood ,  or  farming  neigh- 
borhoods, to  which  he  conducts  it,  the  consumers  being  required 
to  pay  reasonable  rates,  and  being  subjected  to  reasonable  regu- 
lations; and  whether  the  quantity  sought  to  be  condemned  is 
reasonably  necessary  to  supply  the  public  use  in  a  neighborhood 
or  neighborhoods  must  be  determined  by  the  court  in  which  the 
proceedings  are  brought  for  condemnation  of  the  private  right.  "^] 

iLux  V.  Haggia,  (Cal.)  10  Pac.  Rep.  700. 

(281) 


§    160  SUGGESTIONS   FOR    LEGISLATION.  [Ch.  9. 

§  160.     Summary   of  suggestions  concerning  legis- 
lation. 

Without  any  further  discussion,  we  shall  briefly  sum  up  our 
conclusions  with  respect  to  the  character,  form,  and  objects  of 
the  legislation  which  we  suggest: 

First.  The  resort  to  the  right  of  eminent  domain  and  the  con- 
demnation of  water  should  be  restricted  mainly,  even  if  not  en- 
tirely, to  the  obtaining  adequate  supplies  for  consumption  by 
cities,  villages,  and  other  municipalities.  This  being  a  public 
use  of  the  liighest  nature, — the  preservation  of  the  general 
health, — it  overrides  all  other  uses,  and  takes  preference  of  irri- 
gation, manufacturing,  mining,  watering  stock,  and  all  other 
ordinary  purposes  to  which  natural  streams  may  be  appropri- 
ated.    All  other  uses  of  water  must  succumb  to  this. 

Second.  The  smaller  streams  throughout  the  state  should  be 
left  substantially  to  the  exclusive  use,  so  far  as  irrigation  is  con- 
cerned, of  the  private  riparian  proprietors  upon  their  banks. 
The  natural  right  and  advantage  of  the  riparian  proprietors  en- 
title them  to  the  first  use  of  the  waters  of  such  streams;  and, 
after  their  primary  needs  have  been  reasonably  satisfied,  there 
will  not  be  left  any  substantial  excess  of  the  waters  for  the  use 
of  distant  and  non-riparian  land-owners. 

Third.  The  larger  and  permanent  streams  throughout  the 
state,  the  names  of  some  of  which  have  already  been  mentioned, 
are  capable,  when  properly  regulated  and  utilized,  of  supply- 
ing the  needs  for  irrigation,  not  only  of  all  the  private  riparian 
proprietors  on  their  banks,  but  also  of  large  communities  who 
occupy  lands  more  or  less  distant  from  them.  While  the  ripa- 
rian proprietors  even  on  these  larger  streams  have  a  natural  ad- 
vantage, and  are  entitled  to  have  their  wants  first  supplied  for 
purposes  of  irrigation,  yet  they  are  not  entitled  to  consume  the 
entire  waters  of  a  stream.  After  the  reasonable  needs  of  the  ri- 
(282) 


Ch.  9.]  SUGGESTIONS   FOR    LEGISLATION.  §   161 

parian  proprielors  have  been  fairly  and  reasonably  ascertained 
and  satisfied,  all  the  excess  of  the  waters  of  any  such  stream  be- 
longs of  right,  for  the  purposes  of  irrigation,  to  those  communi- 
ties of  non-riparian  land-owners  who  are  so  situated,  geograph- 
ically and  topographically,  that  they  can  in  the  best  manner  ap- 
propriate and  utilize  such  surplus  of  the  waters. 

Fourth.  Legislation  of  the  character  heretofore  described 
should  carry  these  principles  into  operation.  A  single  commis- 
sioner, representing  the  community  of  riparian  proprietors  on 
each  of  the  smaller  streams,  could  regulate  their  use  of  the  wa- 
ter for  irrigation  by  appropriate  by-laws.  On  each  of  the  larger 
class  of  streams  a  local  board  of  commissioners  could  frame  the 
necessary  by-laws  for  the  government  of  both  the  riparian  pro- 
prietors on  the  stream,  and  the  communities  of  land-owners  oc- 
cupying tracts  at  a  distance  from  it.  The  general  powers  of 
these  commissioners,  and  the  general  nature  of  the  rules  or  by- 
laws which  they  should  promulgate,  have  already  been  suffi- 
ciently indicated.  The  details  of  these  special  rules  must  largely 
depend  upon  particular  circumstances  connected  with  each  sep- 
arate stream. 

Fifth.  The  title  of  the  Civil  Code  concerning  water-rights 
should  be  wholly  repealed,  as  being  entirely  inconsistent  with 
the  fundamental  principles  of  the  system  here  proposed.  The 
doctrine  of  prior  appropriation  is  completely  at  war  with  a  sys- 
tem which  recognizes,  harmonizes,  and  protects  the  rights  of 
all  parties  in  the  state. 

§  161.     Concluding  observations. 

I  have  now  completed  the  design  which  was  formed  when 
this  essay  concerning  "Water-Rights"  was  commenced;  in  fact, 
the  discussion  has  extended  to  a  much  greater  length  than  I 
had  originally  supposed  would  be  necessary.  It  is  true,  I  have 
by  no  means  exhausted  the  general  subject  of  rights  connected 

(283) 


§161  SUGGESTIONS    FOR    LEGISLATION.  [Cll.  9. 

with  water,  of  property  in  water,  or  in  the  soil  covered  by  the 
water,  under  all  conditions  and  circumstances.  There  are  many 
important  questions  which  I  have  left  untouched;  there  are 
many  questions  of  great  doubt  and  difficulty,  peculiar  to  this 
Pacific  coast,  to  which  I  have  not  even  alluded. 

The  sin<,de  object  of  this  essay  was  to  ascertain,  as  far  as  pos- 
sible, tlie  law  peculiar  to  the  Pacific  states  and  territories,  con- 
cerning the  waters  of  natural  running  streams,  the  rights  of  all 
persons,  riparian  proprietors  and  others,  to  use  the  waters  of 
such  streams,  and  especially,  as  being  of  paramount  impor- 
tance to  the  agricultural  interests,  their  right  to  use  and  con- 
sume these  waters  for  the  purpose  of  irrigation. 

Upon  the  foundation  of  existing  law,  as  thus  ascertained,  it 
was  my  further  design  to  suggest  such  measures  of  just  and  prac- 
ticable legislation  as  would  render  the  waters  of  these  streams 
available,  for  purposes  of  irrigation ,  to  the  largest  communities 
of  persons  engaged  in  agriculture,  with  the  least  possible  inter- 
ference with  the  existing  and  natural  rights  of  any  class.  The 
object  thus  proposed  has  been  reasonably  accomplished.  There 
seemed  to  be  a  prevailing  opinion  among  the  members  of  the 
legal  profession — an  opinion  in  which  I  partook  when  commenc- 
ing this  essay — that  the  law  of  California  and  other  Pacific  com- 
monwealths concerning  the  water-rights  in  natural  streams,  pri- 
vate riparian  rights,  the  rights  of  private  riparian  proprietors, 
and  similar  topics  connected  with  the  appropriation  and  use  of 
such  waters,  was  wholly  vague,  unsettled,  and  uncertain,  to  be 
collected. only  from  doubtful,  contradictory,  and  conflicting  de- 
cisions. It  has  been  shown  that  there  is,  in  reality,  no  founda- 
tion for  this  opinion.  In  the  great  majority  of  the  states  and 
territories  embraced  within  our  review,  the  entire  field  has  been 
occupied  by  elaborate  systems  of  statutory  legislation.  In  Cal- 
ifornia and  Nevada  it  has  been  shown,  as  it  seems  to  me,  be- 
yond the  possibility  of  question  or  doubt,  that  the  principles 
(284) 


Ch.  9.]  SUGGESTIONS    FOR    LEGISLATION.  §    161 

and  fundamental  doctrines  of  the  common  law  concerning  the 
waters  of  natural  streams  flowing  through  or  by  private  lands, 
private  riparian  rights,  and  the  rights  of  private  riparian  pro- 
prietors, have  been  established  by  the  courts  in  an  unbroken 
series  of  decisions. 

There  are  two  antagonistic  interests  in  the  state,  each  endeav- 
oring to  control  the  legislature,  and  to  shape  the  legislation  en- 
tirely in  its  own  behalf,  to  the  complete  exclusion  of  the  other. 
These  are  the  riparian  proprietors,  who  assert  their  common-law 
rights,  and  would  exclude  all  other  classes  from  any  participa- 
tion in  the  waters  of  the  stream,  however  abundant;  and  the 
communities  of  land-owners  away  from  the  banks  of  streams, 
who  deny  any  rights  of  the  riparian  proprietors,  and  claim  a 
free,  unrestricted  access  to  and  appropriation  of  all  natural 
streams,  limited  only  by  the  extent  of  their  own  needs.  The 
latter  class,  being  the  most  numerous,  has  prevailed  with  the 
legislature,  and  shaped  the  legislation  exclusively  for  its  own 
benefit,  in  most  of  the  Pacific  states  and  territories,  whose  stat- 
utes I  have  hereinbefore  quoted. 

The  type  of  legislation  which  I  have  proposed,  recognizes  the 
just  claims  of  both  these  classes;  it  provides  for  satisfying  the 
demands  of  each,  so  far  as  possible,  without  completely  sacrific- 
ing the  other;  but  it  necessarily  requires  that  each  should  sur- 
render some  portion  of  its  exclusive  pretensions.  I  have  the  ut- 
most confidence  that  the  main  elements  and  features  of  legisla- 
tion which  I  have  proposed,  might,  in  the  hands  of  intelligent 
men,  who  were  familiar  alike  with  the  situation  and  topography 
of  the  larger  rivers,  and  of  the  regions  through  which  they  run, 
and  with  the  agricultural  methods,  customs,  and  wants  of  the 
adjacent  communities,  be  worked  up  into  a  just,  practicable, 
and  efficient  system  for  the  regulation  of  irrigation  throughout 
all  parts  of  the  state. 

*  (285) 


INDEX. 

[the  numbers  refer  to  sections.] 


A. 

ABANDONMENT, 

of  appropriation,  88-91. 
general  doctrine  of,  88. 
by  invalid  sale,  89. 
by  returning  the  water,  89. 
by  negligence,  89. 
by  adverse  user,  90. 

ACEQUIAS, 

statutes  of  New  Mexico  concerning,  102. 

of  Arizona,  103. 
system  of,  impracticable  for  California,  149. 

ACTION, 

for  injuries  to  ditches,  67. 
for  unlawful  diversion,  68. 

in  equity,  69. 
for  injury  to  quality  of  water,  70. 
for  damages  caused  by  dams  or  ditches,  71-78. 
to  restrain  hydraulic  mining,  77. 

ACT  OF  CONGRESS, 

concerning  appropriation  of  water,  17. 

of  1870,  is  declaratory  only,  28. 

has  not  sanctioned  injurious  effects  of  hydraulic  mining,  77 

ADVERSE  USER, 

rights  acquired  by,  90. 
easement  in  use  of  stream  acquired  by,  137. 

(287) 


288  INDEX. 

AGRICULTURE,  see  Irrigation. 

APPLICATION, 

of  water  to  beneficial  use,  intention  of,  is  necessary  to  valid  appro- 
priation, 47. 
must  be  actual,  49. 
of  water,  by  riparian  owner,  to  useful  purposes,  119  etseq. 

APPROPRIATION  OF  WATER, 

not  recognized  at  common  law,  4,  21. 

for  mill  purposes,  11. 

origin  and  basis  of  the  right  of,  12-24. 

early  importance  of  mining  interest,  13. 

mining  customs,  14. 

doctrine  of,  stated,  15. 

right  of,  not  at  first  availing  as  against  government  or  ita 
grantee,  16. 

sanctioned  by  act  of  congress,  17. 

limits  of  the  doctrine;  the  early  cases,  18. 

views  of  United  States  supreme  court  on,  19. 

doctrine  unknown  to  common  law,  21. 

presumed  license  from  government,  23. 

grounds  of  this  presumption,  23. 
as  against  subsequent  patentee,  25. 

act  of  congress  of  1870,  28. 

on  public  lands  of  the  state,  29. 
right  of,  confined  to  public  lands,  30. 

relative  jurisdiction  of  state  and  United  States  over  publiclands,  31. 
power  of  government  to  annex  conditions  to  grants,  32. 
conflicting  claims  between  settlers  and  appropriators,  38. 

when  patentee's  title  vests,  34,  35. 

whether  patent  relates  back  to  initial  steps,  38. 

riparian  rights  under  Mexican  grants,  42. 
how  effected,  44-54. 

successive  appropriations,  44. 

doctrines  which  control,  45. 

methods  of  effecting,  46. 

water-right  may  be  merely  possessory,  46. 

intent  to  apply  water  to  beneficial  use,  47. 

for  purposes  of  speculation,  47. 

for  drainage  only,  47. 


INDEX.  289 

APPROPRIATION  OF  WATER— Continued. 

must  be  actual  use  of  water,  49. 

what  acts  will  accomplish,  50. 

notice  of  intent  to  appropriate,  51. 

reasonable  diligence  must  be  exercised,  52. 

appropriation,  when  complete,  53. 

appropriation  relates  back  to  first  step,  54. 
nature  of  the  right  acquired  by,  55-70. 

appropriator's  right  begins  at  head  of  his  ditch,  55. 

nature  and  extent  of  right  depends  on  purpose  of  appropria- 
tion, 56. 

property  in  ditches  and  canals,  57. 

Bale  of  ditches  and  water-rights,  58. 

tenancy  in  common  in  water-rights,  59. 

right  to  natural  flow  of  water  at  head  of  ditch,  60. 

what  are  streams  subject  to  appropriation,  61. 

definition  and  characteristics  of  a  water-course,  63. 

percolating  and  subterraneous  waters,  63. 

right  to  exclusive  use  of  water,  64. 

appropriator  may  change  place  and  manner  of  use,  65. 

remedies  for  interference  with  appropriator's  rights,  66. 

injuries  to  ditches,  67. 

remedies  for  unlawful  diversion,  68. 

injunction  in  equity,  69. 

deterioration  of  quality  of  water  is  actionable,  70. 
liability  of  appropriator  for  damages  caused  by  his  worlss,  71-78. 

various  kinds  of  injuries,  71. 

damages  caused  by  breaking  or  overflow  of  dam,  72. 

measure  of  care  required,  73. 

trespass  on  rights  of  riparian  owners,  74. 

damages  from  mode  of  construction  or  operation  of  works,  75. 

injuries  from  discharge  of  debris  into  stream,  76. 

hydraulic  mining  as  a  public  nuisance,  77. 

impounding  dams,  78. 
extent  of  the  right  acquired  by,  79-82. 

amount  of  water  acquired,  79. 

capacity  of  ditch  as  measure  of,  80,  81. 
successive  appropriations,  82-88. 

rights  acquired  by,  82,  83. 

surplus  water  may  be  appropriated,  83. 

periodical  appropriations,  84. 

POM.  EIP. — 19 


290  INDEX. 

APPROPRIATIOlSr  OF  WATER— Continued. 

there  must  be  actual  diversion,  48. 

conditions  under  which  subsequent  appropriation  may  be  effect- 
ed, 85. 

division  of  increase  in  stream,  86. 

wrongful  diversion  of  springs,  87. 
abandonment  of,  88-91. 

general  theory  of,  88. 

methods  in  which  an  abandonment  is  effected,  89. 

abandonment  by  adverse  user,  90. 
review  of  the  system,  91-94. 

the  system  as  a  whole,  91. 

defects  of  the  system,  93. 
distinguished  from  true  riparian  rights,  94. 
legislation  of  California  concerning,  96. 
Montana  act  concerning,  98. 
Idaho  statutes  regulating,  100. 
under  Mexican  law,  114. 

use  of  water  for  purposes  of  irrigation,  128-144. 
prior,  gives  no  exclusive  right  to  use  of  water  for  irrigation,  133. 

APPURTENANCE, 

riparian  owner's  right  to  natural  flow  of  stream  is  not,  9. 
ditches  and  canals  are  not,  57. 

ARIZONA, 

statutes  of,  regulating  water-rights,  103. 
system  of,  impracticable  for  California,  149. 

B. 

BANKS, 

essential  to  a  water-course,  62. 

riparian  owner  may  protect,  by  means  of  dam  or  bulk -head,  75,  note. 

BILL  OF  SALE, 

transfer  of  water-rights  by,  58,  note. 

BREAKING  OF  DAM, 

damages  caused  by,  72,  73. 

BULK-HEAD, 

may  be  erected  to  preserve  banks  of  stream,  75,  note. 


I 


INDEX.  291 

c. 

CALIFORNIA, 

statute  of,  recognizing  miners'  customs,  14. 
legislation  of,  on  riparian  rights,  96. 
act  for  promotion  of  irrigation,  96. 
riparian  rights  in  private  streams  of,  108  et  seg. 

application  of  common-law  doctrines,  109,  110. 
construction  of  section  1423,  Civil  Code  Cal.,  111-113. 
effect  of  Mexican  laws  in,  as  to  water-rights,  114. 
riparian  rights  in  Kern  district,  115. 
law  of,  as  to  riparian  uses,  132. 

CANALS, 

diversion  by  means  of,  must  be  actual,  48. 

property  in,  57. 

are  not  appurtenances,  57. 

sale  of,  57,  58. 

liability  for  damages  caused  by,  71-78. 

CARE,  see  Diligence;  Negligence. 

CHANNEL, 

essential  to  a  water-course,  63. 
unlawful  changing  of,  75,  note, 
obstruction  of,  by  mining  debris,  77. 

CIVIL  LAW, 

law  of  riparian  rights  under,  114. 

CODE, 

of  California,  on  water-rights,  96. 

of  California,  section  1422,  construction  of,  111-113. 

of  France,  on  irrigation  of  riparian  lands,  141. 

COLORADO, 

statutes  of,  regulating  riparian  rights,  99. 
system  of  water-rights  in,  criticised,  150. 

COMMON  LAW, 

doctrine  of,  in  regard  to  riparian  rights,  4-13. 
appropriation  unknown  to,  21. 

as  to  riparian  rights,  abolished  in  several  states,  106. 
application  of,  to  riparian  rights  in  California,  109, 110» 


292  INDEX. 

COMMON  LAW— Continued. 

not  affected  by  section  1422,  Civil  Code  Cal.,  111-113. 
governs  riparian  rights  in  California,  116. 
'  prescriptive  water-rights  under,  118. 
inadequate  to  settle  question  of  irrigation  in  Pacific  states,  146. 

CONSTITUTIONAL  LAW, 

statutes  cannot  sanction  injuries  caused  by  hydraulic  mining,  77. 
taking  stream  for  public  use,  157-159. 

CONSTRUCTION, 

of  act  of  congress  of  1870,  28, 

of  section  1422,  Civil  Code  Cal.,  111-113. 

of  section  1288,  Code  Civil  Proc.  Cal.,  159. 

CO-TENANCY, 

in  water-rights,  59. 

CUSTOMS,  see  Miners'  Customs. 

D. 

DAKOTA, 

statutes  of,  regulating  riparian  rights,  101. 

DAMAGES, 

caused  by  ditches  or  dams,  71-78. 

from  breaking  or  overflow  of  dam,  72,  73. 

trespass  upon  rights  of  riparian  owners,  74. 

from  mode  of  construction  or  operation  of  works,  75. 

caused  by  mining  debris,  76-78. 

caused  by  hydraulic  mining,  77. 

DAMNUM  ABSQUE  INJURIA, 

consumption  of  part  of  streams  is,  when,  135. 

DAMS, 

appropriation  of  water  by  means  of,  at  common  law,  11. 
reasonable  diligence  must  be  exercised  in  completion  of,  52. 
appropriator's  liability  for  damages  caused  by,  71-78. 
damages  from  breaking  or  overflow  of,  72. 
care  required  in  construction  of,  73. 
flooding  adjacent  lands  by,  75. 
for  impounding  mining  debris,  78. 


INDEX.  293 

DEBRIS, 

pollution  of  water  by,  70. 

discharge  of,  into  streams,  76. 

from  hydraulic  mining,  a  public  nuisance,  77, 

impounding  dams  for,  78. 

DEDICATION, 

of  rivers  to  public  use,  under  Mexican  law,  114. 

DILIGENCE, 

in  completion  of  works,  to  secure  benefit  of  appropriation,  53. 
required  in  construction  and  maintenance  of  dam,  72,  73. 
required  by  statute  in  California,  of  appropriators,  96. 

DITCHES, 

there  must  be  actual  diversion  by  means  of,  m  oraer  to  constitute 

valid  appropriation,  48. 
reasonable  diligence  required  in  completion  of,  53. 
appropriator's  right  begins  at  head  of,  55. 
property  in,  57. 
are  part  of  realfy,  57. 
sale  of,  57,  58. 

remedies  for  injuries  to,  67. 

appropriator's  liability  for  damages  caused  by,  71-78. 
capacity  of,  as  measure  of  appropriation,  80,  81. 
statute  of  Nevada  regulating  construction  of,  97. 

DIVERSION. 

of  water-course,  illegal  at  common  law,  4. 

without  actual  damage.  7. 

when  permissible  at  common  law,  10. 

for  mining  purposes,  15. 

presumed  license  from  government  for,  22,  23. 

as  against  subsequent  patentee,  25. 

must  be  actual,  in  order  to  complete  appropriation,  48. 

point  of,  may  be  changed,  65. 

unlawful,  remedies  for,  68. 

injunction  against,  69. 

regulated  by  statute  in  California,  96. 

of  stream,  for  purposes  of  irrigation,  128-144. 

DRAINAGE, 

appropriation  of  water  for  purposes  of,  is  nugatory,  47. 
flooding  adjacent  lands  is  unlawful,  75. 


294  INDEX. 

E. 

EASEMENT, 

riparian  owner's  right  to  natural  flow  of  stream  is  not,  9, 
to  use  of  stream,  acquired  by  grant  or  prescription,  137. 

EJECTMENT, 

will  not  lie  to  recover  possession  of  a  water-course^  69. 

EMINENT  DOMAIN, 

condemnation  of  right  of  way  for  ditches  or  flumes, 
in  Nevada,  97. 
in  Colorado,  99. 
in  Idaho,  100. 
taking  of  stream  for  public  use,  157-159. 
water  supply  to  cities  is  public  use,  157. 
whether  irrigation  is  a  public  use,  158. 
condemnation  of  stream  under,  159. 

EQUITY. 

jurisdiction  of,  to  restrain  unlawful  diversion,  69. 
will  enjoin  hydraulic  mining,  77. 
jurisdiction  of,  in  settling  water-rights,  154 

EVIDENCE, 

miners'  customs  must  be  proved  as  facts,  24. 
steps  necessary  to  effect  appropriation,  47  et  seq, 
of  abandonment  of  appropriation,  89. 


F. 


FARMING  NEIGHBORHOOD, 
meaning  of  the  term,  159. 


FLUME, 

may  be  used  in  diversion  by  appropriator,  48. 
statute  regulating  construction  of,  in  Nevada,  97. 

FRENCH  LAW, 

on  the  subject  of  irrigation,  141. 

G. 

GRANT, 

of  public  lands,  subject  to  prior  appropriation,  25 
power  of  government  to  annex  conditions  to,  32. 


INDEX.  295 

GRANT— Continued. 

conflicting  claims  between  settlers  and  appropriators,  33. 

at  what  point  title  vests  under,  34. 

whether  relates  back  to  initial  steps,  38. 

Mexican,  effect  on  riparian  rights,  43. 

of  water-rights  and  ditches,  58. 

if  nugatory,  works  abandonment,  89. 

H. 

HYDRAULIC  MINING, 

effects  of,  constituting  a  public  nuisance,  77. 
impounding  dams  for,  78. 

I. 

IDAHO, 

statutes  of,  concerning  riparian  rights,  100. 

IMPOUNDING  DAMS, 

for  hydraulic  mining  debris,  78. 

INJUNCTION, 

to  restrain  unlawful  diversion  of  water,  69. 
to  restrain  hydraulic  mining,  77. 

INTENT, 

to  apply  water  to  beneficial  use  is  indispensable  to  valid  appropriA* 

tion,  47. 
notice  of,  50,  51. 

INTERPRETATION, 

of  act  of  congress  of  1870,  28. 

of  section  1423,  Civil  Code  Cal.,  111-113. 

of  section  1283,  Code  Civil  Proc.  Cal.,  159. 

IRRIGATION, 

California  statute  for  promotion  of,  96. 
Montana  statute  concerning,  98. 
Colorado  statute  concerning,  99. 
legislation  of  New  Mexico  concerning,  103. 
laws  of  Utah  in  relation  to,  105. 
use  of  riparian  streams  for,  128-144. 

no  right  to  irrigate  non-riparian  lands,  132. 

prior  appropriation  gives  no  exclusive  right,  133. 


296  INDEX. 

IRRIGATION— Continued. 

relative  equality  of  riparian  owners,  134. 

size  of  stream,  135. 

use  must  be  reasonable,  136,  139. 

irrigation  is  subordinate  to  natural  wants,  138. 

is  not  one  of  the  natural  wants,  138,  139. 

test  of  reasonableness  in  use,  139  et  seq, 

French  laws  regulating,  141. 

American  authorities  upon,  142,  143. 

surplus  water  must  be  restored,  144. 
common-law  rules  concerning,  are  inadequate  in  the  Pacific  states, 

146. 
whether  stream  can  be  taken  for,  under  eminent  domain,  158. 

IRRIGATION  COMPANIES, 

laws  governing,  99. 
in  Utah,  105. 

J. 

JOINT  TENANCY, 

in  water-rights,  59. 

JURISDICTION,  I 

of  state  and  United  States  over  public  lands,  31. 
of  equity,  to  restrain  unlawful  diversion,  69. 
to  restrain  hydraulic  mining,  77. 
in  settling  water-rights,  154. 


KERN  DISTRICT, 

riparian  rights  in,  115. 


K. 


L. 


LAKES, 

law  of  riparian  rights  applied  to,  6. 

LEGISLATION, 

need  of,  in  regard  to  waters  on  the  Pacific  coast,  1. 

of  California,  recognizing  miners'  customs,  14. 

of  the  United  States,  17. 

act  of  congress  of  1870  construed,  28. 

on  the  subject  of  riparian  rights,  94  et  seq. 


INDEX.  297 

LEGISLATION— Continued. 

construction  of  section  1423,  Civil  Code  Cal.,  111-113. 
concerning  water-rights,  suggestions  for,  145-161. 

LICENSE, 

from  government,  for  appropriation  of  waters,  presumed,  23,  23. 

M. 
MANUFACTURES. 

use  of  stream  for,  126. 

MAXIMS, 

that  water  should  flow  in  natural  channel.  8. 
sic  utere  tuo,  etc.,  applies  to  riparian  rights,  127. 

MEXICAN  LAW, 

grants  under,  effect  on  riparian  rights,  42. 
law  of  riparian  rights  in,  114. 

former  prevalence  of,  in  California  does  not  affect  riparian  rights, 
114. 

MILLS, 

appropriation  of  water  for,  at  common  law,  11. 

use  of  water  for  propulsion  of,  126.  , 

MINERS'  CUSTOMS, 

origin  and  nature  of,  14. 

sanctioned  by  legislation,  14. 

recognized  by  act  of  congress,  17. 

application  and  eflicacy  of,  24. 

when  void,  24. 

must  be  proved  as  facts,  24. 

must  be  reasonable,  24. 

cannot  legalize  public  nuisance,  24,  77. 

MINING. 

early  importance  of,  in  Pacific  states,  13. 
presumed  license  from  government  for,  22,  23. 
liability  for  damages  caused  by,  71-78. 
discharge  of  debris,  when  unlawful,  76. 
hydraulic,  injurious  effects  of,  77. 
regulated  by  statute  in  California,  96. 


298  INDEX. 

MONTANA, 

statutes  of,  regulating  riparian  rights,  98. 

MUNICIPAL  CORPORATIONS, 

supplying  water  to,  is  public  use  for  which  stream  may  be  con- 
demned, 157. 

N. 

NATURAL  WANTS, 

use  of  riparian  streams  for,  123. 

what  are,  123. 

use  for  irrigation  is  subordinate  to,  138. 

NAVIGABLE  RIVERS, 

obstruction  of,  by  mining  debris,  a  public  nuisance,  77. 
easement  of  public  in,  under  Roman  law,  114. 

NEGLIGENCE, 

will  jeopard  inceptive  rights  by  appropriation,  53, 

causing  injuries  to  ditches,  67. 

liability  of  appropriator  for,  71-78. 

in  construction  and  maintenance  of  dam,  72,  73. 

unlawful  discharge  of  mining  debris,  76-78. 

works  abandonment,  when,  89,  90. 

NEVADA, 

statutes  of,  regulating  riparian  rights,  97. 
riparian  rights  in  private  streams  of,  108  et  seg. 

NEW  MEXICO, 

statutes  of,  regulating  water-rights,  102. 
system  of,  impracticable  for  California,  149. 

NOTICE, 

of  intent  to  appropriate,  50,  51. 

not  sufficient  without  actual  appropriation,  SOl. 

how  given,  51. 

provided  for  by  statute  in  California,  96. 

NUISANCE, 

miners'  customs  cannot  legalize,  24,  77, 
unlawful  diversion  of  stream  is  a,  68. 
pollution  of  water  is  a,  70. 
effects  of  hydraulic  mining,  77. 


INDEX.  299 

o. 

OVERFLOW, 

of  dam,  liability  for  damages  caused  by,  72,  73. 
carrying  mining  debris,  76-78, 

P. 

PATENT, 

subsequently  issued,  is  subject  to  prior  appropriation,  25. 

power  of  government  to  annex  conditions  to.  33. 

when  to  be  issued,  34. 

title  under,  vests  when,  35. 

whether  relates  back  to  initial  steps,  38. 

PERCOLATING  WATERS. 

when  constitute  a  water-course,  63. 

PLACE, 

of  using  water  appropriated  may  be  changed,  65. 
statute  of  California  conceruing,  96. 

POSSESSION. 

without  title,  may  support  water-rights,  46. 

PRE-EMPTION,  see  Patent;  Settlerf, 

PRESCRIPTION, 

right  to  commit  a  public  nuisance  cannot  be  acquired  by,  77. 
rights  to  water  acquired  by,  89,  90, 118,  137. 

PRESUMPTION, 

of  a  license  from  government  for  mining  operations,  22,  23. 
that  stream  was  on  public  lands,  93. 

PRIORITY. 

as  between  settlers  and  appropriators,  33  et  seg. 
successive  appropriations,  83. 

statute  of  California  regarding,  96. 

PROPRIETORSHIP, 
of  public  lands,  31. 

PUBLIC  LANDS, 

right  to  appropriate  waters  flowing  through,  13-24. 
grantee  of,  takes  subject  to  prior  appropriation,  25. 


300  INDEX. 

PUBLIC  LANDS— Continued. 

of  the  state,  whether  open  to  appropriation,  29. 
right  of  appropriation  confined  to,  30. 
appropriation  may  be  independent  of  title  to,  46. 
primary  disposal  of,  carries  riparian  rights,  113. 

PUBLIC  USE,  see  Eminent  Domain. 

PURPOSE, 

of  appropriation,  47. 

of  appropriation  may  be  changed,  65. 

determines  extent  of  right  acquired,  79. 

to  which  water  may  be  applied  by  riparian  owner,  119. 

use  of  water  for  irrigation,  128-144. 


R. 
RAVINE, 

may  be  used  as  part  of  appropriator's  ditch,  48. 

REALTY, 

riparian  owner's  right  to  flow  of  stream  is  part  of,  9. 
when  flowing  water  is  part  of,  55. 
ditches  and  canals  are,  57. 

REASONABLE  DILIGENCE, 

in  completing  appropriation,  52. 

required  by  statute  in  California,  96. 

REASONABLE  USE. 

of  water  by  riparian  owner,  125. 

is  a  question  of  fact,  125, 

for  manufactures,  126. 
manner  of  use  must  be  reasonable,  127. 
of  water  for  irrigation,  128-144. 
measure  of  reasonableness,  136. 

RELATION, 

doctrine  of,  applied  to  inceptive  rights  of  pre-emption  claimant,  88. 
applied  to  date  of  appropriation,  54. 

REMEDIES. 

for  injuries  to  ditches,  67. 
for  unlawful  diversion,  68. 
in  equity,  69. 


INDEX.  301 

REMEDIES— Continued. 

for  injuries  to  quality  of  water,  70. 

for  damages  caused  by  dams  9t  ditches,  71-78. 

for  injuries  from  mining  debris,  76. 

against  injurious  effects  of  hydraulic  mining,  77. 

RIPARIAN  RIGHTS, 

importance  of,  in  Pacific  states,  1. 

common-law  doctrine  of,  4-12. 

appropriation  not  recognized  at  common  law,  4. 

diversion  of  stream  is  unlawful,  7. 

owner's  right  to  natural  flow  of  stream,  8. 

this  right  not  an  appurtenance  to  estate,  9. 

diversion,  when  permissible  at  common  law,  10. 

appropriation  for  mill  purposes,  at  common  law,  11. 

origin  and  basis  of  the  right  to  appropriate,  12-34. 

miners'  customs  as  to,  14,  24. 

doctrine  of  prior  appropriation,  15. 

legislation  of  congress  as  to,  17. 

appropriation  as  against  subsequent  patentee,  35 

act  of  congress  of  1870,  38. 

on  public  lands  of  the  state,  29. 

appropriation  confined  to  public  domain,  30. 

power  of  government  to  annex  conditions  to  grants,  32. 

conflicting  claims  between  settlers  and  appropriators,  33. 

of  patentee,  become  vested,  when,  34,  35. 

under  inceptive  title  are  protected,  37. 

whether  patent  relates  back  to  initial  steps,  38. 

under  Mexican  grant,  42. 

how  appropriation  is  effected,  44-54. 

nature  of  the  right  acquired  by  appropriation,  55-70. 

definition  and  characteristics  of  a  water-course,  63. 

deterioration  of  quality  of  water  is  actionable,  70. 

liability  of  appropriator  for  damages  caused  by  dams  or  ditches, 

71-78. 
injurious  effects  upon,  of  hydraulic  mining,  77 
successive  appropriations,  82-88. 
abandonment  of,  88-91. 
distinguished  from  appropriation,  94. 
legislation  on  the  subject  of,  94. 

California,  96. 

Nevada,  97. 


302  INDEX. 

RIPARIAN  RIGHTS-Continued. 

Montana,  98. 

Colorado,  99. 

Idaho,  100. 

Dakota,  101. 

New  Mexico,  103. 

Arizona.  103. 

Wyoming,  104 

Utah,  105. 
abolished  in  several  states  and  territories,  106. 
on  private  streams  of  California  and  Nevada,  108  etseq, 
common  law  governs,  in  California,  110. 
how  affected  by  section  1422,  Civil  Code  Cal.,  111-113. 
under  Roman  and  Mexican  law,  114. 
in  Kern  district,  115. 

governed  by  common  law  of  England,  116. 
who  are  riparian  owners,  117. 
uses  to  which  the  water  may  be  put,  119  et  seq. 
general  statement  of  law  of,  119. 
legitimate  riparian  uses,  121. 
California  decisions  on  riparian  uses,  133, 
natural  uses,  123. 
secondary  or  artificial  uses,  124. 
reasonable  riparian  use,  125. 
use  for  manufactures,  126. 
manner  of  use  must  be  reasonable,  137. 
use  of  water  for  irrigation.  128-144. 

no  right  to  irrigate  non-riparian  lands,  133. 

prior  appropriation  gives  no  exclusive  right,  133. 

relative  equality  of  riparian  owners,  134. 

size  of  stream  affects,  135. 

use  must  be  reasonable,  136,  139. 

irrigation  is  subordinate  to  natural  wants,  138. 

test  of  reasonableness  in  use,  139-143. 

surplus  water  must  be  restored,  144. 
suggestions  for  legislation  concerning,  145-161. 

need  of  statutory  regulation,  145. 

common-law  rules  inadequate  for  question  of  irrigation,  146. 

contents  of  proposed  statute,  147. 

essential  nature  of  proposed  statute,  148. 

system  of  acequias  impracticable,  149. 


I 


INDEX.  303 

RIPARIAN  RIGHTS— Continued. 

Colorado  system  criticised,  150. 

legislation  must  respect  natural  laws  and  natural  rights,  151. 

natural  rights  and  advantages  of  riparian  owners,  153. 

jurisdiction  of  equity  in  settling  water-rights,  154. 

legislation  to  the  same  end,  155. 

provision  for  non-riparian  lands,  156. 

condemnation  of  stream  for  public  use,  157. 

whether  irrigation  is  a  public  use,  158. 

taking  stream  under  eminent  domain,  159. 

summary  of  suggestions  concerning  legislation,  160. 

concluding  observations,  161. 

RIVERS,  see,  also,  Wateb-Courses. 

no  exclusive  appropriation  of,  at  common  law,  4. 

what  are,  subject  to  appropriation,  61. 

obstruction  of,  by  debris  from  hydraulic  mining,  77. 

legislation  on  the  subject  of,  94. 

ownership  of,  under  Roman  and  Mexican  laws,  114. 

use  of,  for  irrigation,  128-144 

ROMAN  LAW, 

riparian  rights  under,  114. 


SALE, 

of  water-rights  and  ditches,  58. 
when  works  abandonment,  89. 

SETTLERS, 

take  subject  to  prior  appropriation,  25. 

and  appropriators,  conflicting  claims  of,  33. 

title  of,  when  vests,  84. 

whether  patent  relates  back  to  initial  steps,  38. 

SOVEREIGNTY, 

over  public  lands,  31. 

SPECULATION, 

appropriation  of  water  for  purposes  of,  is  nugatory,  47. 

SPRINGS, 

wrongful  diversion  of,  87. 


304  INDEX. 

STATE, 

public  lands  of  the,  whether  open  to  appropriation,  29. 
and  United  States,  relative  jurisdiction  of,  over  public  lands,  31. 
power  of,  to  restrain  hydraulic  mining,  77. 

riparian  rights  of,  not  reserved  by  section  1422,  Civil  Code  Cal.,  113. 
power  of,  to  regulate  water-rights,  not  affected  by  former  preva- 
lence of  Mexican  law,  114. 

STATUTES, 

act  of  congress  of  1866,  17. 

act  of  congress  of  1870,  28. 

do  not  sanction  injurious  effects  of  hydraulic  mining,  77. 

regulating  riparian  rights,  94  et  seq. 

construction  of  section  1422,  Civil  Code  Cal.,  111-113. 

concerning  water-rights,  suggestions  for,  145-161. 

STREAMS,  see  WaterCoubses. 

SUBTERRANEAN  WATERS, 

when  constituting  a  water-course,  63. 

SUCCESSIVE  APPROPRIATORS, 

priority  as  between,  44. 
rights  acquired  by,  82-88. 

SUIT,  see  Action. 

SURFACE  WATER, 

may  constitute  a  stream,  when,  62 

T. 

TENANTS  IN  COMMON, 

of  water-rights,  59. 

TIME, 

periodical  appropriations,  84. 

TITLE, 

from  United  States,  vests,  when,  34. 

priority  of,  as  against  subsequent  appropriator,  35,  86. 

relation  of,  to  initial  steps,  38. 

inceptive,  riparian  rights  under,  are  protected,  37. 

water-rights  may  depend  on  mere  possession,  46. 

by  appropriation,  when  perfect,  53,  54. 


INDEX.  305 

TITLE— Continued. 

appropriator's  right  begins  at  head  of  his  ditch,  55. 

to  ditches  and  canals,  57. 

to  ditches  and  water-rights,  sale  of,  57,  58. 

to  water-rights,  in  co-tenancy,  59. 

to  water,  abandonment  of,  88-91. 

to  water-rights,  legislation  on  the  subject  of,  94  etaeg. 

prescriptive  water-rights,  118. 

TRESPASS, 

upon  rights  of  riparian  owners,  74 

u. 

UNITED  STATES, 

right  of  appropriation  not  originally  availing  against,  16. 

act  of  congress  as  to  appropriation  of  water,  17. 

presumed  to  have  licensed  mining  operations,  22,  23. 

grantee  of,  takes  subject  to  prior  appropriation,  25. 

act  of  1870  is  declaratory  only,  28. 

appropriation  restricted  to  public  lands  of,  30. 

and  state,  relative  jurisdiction  of,  over  public  lands,  31. 

power  of,  to  annex  conditions  to  grants,  32. 

title  from,  when  vests,  34. 

power  of,  over  navigable  rivers,  77. 

rights  of,  not  affected  by  section  1422,  Civil  Code  Cal.,  113. 

USE, 

of  water  by  riparian  proprietors,  at  common  law,  4. 
intent  to  apply  water  to  beneficial  use  is  indispensable  to  valid  ap- 
propriation, 47. 

water  must  be  actually  put  to  use,  49. 
place  and  manner  of,  appropriator  may  change,  65. 
must  not  pollute  water,  70. 

determines  amount  of  water  acquired  by  appropriator,  79. 
non-user  works  abandonment,  89,  90. 
of  water  by  riparian  proprietor,  119-128. 

legitimate  riparian  uses,  121. 

natural  uses,  123. 

secondary  or  artificial  uses,  124. 

must  be  reasonable,  125. 

reasonableness  is  question  of  fact,  125. 

POM. RIP. — 20 


S06  INDEX. 

USE— Continued. 

for  manufactures,  126. 

manner  of,  must  be  reasonable,  137. 

for  irrigation,  1,8-144. 

irrigation  is  subordinate  to  natural  wants,  138. 

UTAH, 

statutes  of,  concerning  water-rights,  105. 

w. 

WATER, 

importance  and  value  of,  in  Pacific  states,  1,  3. 
no  appropriation  of,  at  common  law,  4. 
right  to,  ma}'  be  independent  of  title  to  land,  46. 
intent  to  apply  to  beneficial  use  necessary  to  valid  appropriation,  47. 
must  be  actually  diverted,  48. 
and  put  to  actual  use,  49. 
appropriator  has  no  right  to,  above  his  ditch,  55. 
rights  in.  may  be  sold,  58. 
pollution  of,  is  actionable,  70. 

unlawful  discharge  of,  upon  lands  of  adjoining  proprietor,  75. 
acquired  by  appropriation,  amount  of,  79. 
capacity  of  ditch  as  measure  of  appropriation,  80,  81. 
successive  appropriations  of,  83-88. 
surplus,  may  be  appropriated,  83. 
increase  in,  how  divided,  86. 
abandonment  of,  88-91. 
legislation  on  the  subject  of,  94  et  seq. 
riparian  rights  in  California  and  Nevada,  108  et  seq. 
use  of,  by  riparian  proprietor,  119-128. 
use  of,  for  irrigation,  128-144. 
taken  for  public  use,  157-159.  '. 

WATER-COURSES, 

common-law  doctrine  of,  4-12. 

no  appropriation  of,  at  common  law,  4. 

diversion  of,  illegal  at  common  law,  4,  7. 

riparian  owner's  right  to  flow  of,  in  natural  channel,  8. 

this  right  not  an  appurtenance  to  estate,  9. 

diversion  of,  when  permissible  at  common  law,  10. 

appropriation  of,  for  mill  purposes,  at  common  law,  11. 


( 


INDEX.  307 

WATER-COURSES-Continued. 

origin  and  basis  of  the  right  to  appropriate,  12-24. 

presumed  license  to  divert,  22,  23. 

appropriation  of,  is  servitude  ou  subsequent  grant,  25 

on  public  lands  of  the  state,  29. 

appropriation  of,  restricted  to  public  domain,  30. 

actual  diversion  of,  necessary  to  complete  appropriation,  48. 

appropriator  has  no  right  to,  above  his  ditch,  55. 

rights  in,  may  be  sold,  58. 

co-tenancy  in,  59. 

definition  and  characteristics  of,  61-63. 

equity  will  enjoin  unlawful  diversion  of,  69 

pollution  of,  is  actionable,  70. 

liability  of  appropriator  for  damages  caused  by  ditches  or  dams, 

71-78. 
obstruction  of,  by  debris  froni  hydraulic  mining,   a  public  nui- 
sance, 77. 
increase  in,  how  divided,  86. 
abandonment  of  rights  to,  88-91 
when  presumed  to  be  public,  93. 
legislation  on  the  subject  of,  94  et  seq. 
riparian  rights  in  California  and  Nevada,  108  et  seq. 
rights  in,  under  Roman  and  Mexican  law,  114. 
who  are  riparian  owners,  117. 

uses  to  which  the  water  may  be  put,  119.  " 

use  of,  for  irrigation,  128-144. 
size  of  stream  as  affecting  use,  135. 
suggestions  for  legislation  concerning,  145-161. 
natural  rights  and  advantages  of  riparian  owners,  153. 
condemnation  of,  for  public  use,  157-159. 

WYOMING, 

legislation  of,  concerning  water-rights,  104. 


WEST  PUBUSHINQ  00.,  PRINTERS,  SAINT  PAUL,  MINN. 


1 


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